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THE COLLECTED PAPERS 
 
 OF 
 
 FREDERIC WILLIAM MAITLAND 
 
 IN THREE VOLUMES 
 Volume I 
 
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CAMBRIDGE UNIVERSITY PRESS 
 
 ILonUon; FETTER LANE, E.G. 
 
 C. F. CLAY, Manager 
 
 (StiinlurgI) : loo, PRINCES STREET 
 JScrlin: A. ASHER AND CO. 
 %tmis: F. A. BROCK HAUS 
 
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 All rights reserved 
 
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THE COLLECTED PAPERS 
 
 OF 
 
 FREDERIC WILLIAM ^AITLAND 
 
 DOWNING PROFESSOR OF THE LAWS OF ENGLAND 
 
 EDITED BY 
 
 H. A. L. FISHER 
 
 VOLUME I 
 
 Cambridge : 
 
 at the University Press 
 191 1 
 
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Camlit'tlige : 
 
 PRINTED BY JOHN CLAY, M.A. 
 AT THE UNIVERSITY PRESS 
 
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CORNELL UNlVERSin 
 
 JUN 26 1912 
 
 LAW LIBRARY 
 
 INTRODUCTION 
 
 WITH one important exception the three volumes 
 here published practically represent the whole 
 mass of Maitland's scattered writing. A few very short 
 notices have been omitted, but wherever an article, 
 however brief, contains a new grain of historical know- 
 ledge or reveals Maitland's original thought upon some 
 problem of law or history, it has been included in this 
 collection. We begin with a philosophical dissertation 
 suljmitted by a young Cambridge graduate to the 
 examiners for a Trinity Fellowship and end with the 
 tribute to the memory of a pupil composed only a few 
 days before his last illness by a great master of history, 
 by one of the greatest scholars in the annals of English 
 scholarship. These papers cover a wide surface. Some 
 are philosophical, others biographical, but for the most 
 part they belong to Maitland's special sphere of legal 
 and social history. Some pieces are confessedly 
 popular, such as the brilliant outline of English legal 
 history which concludes the second volume ; others, 
 and of such is the bulk of the collection, are concerned 
 with problems the simplest terms of which are not 
 apprehended without special study. It would have 
 
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vi Introduction 
 
 been tempting to separate the more technical essays 
 from the work of a simpler and larger pattern with 
 which they are here intermingled ; but there were 
 valid reasons against adopting such a course, and 
 perhaps the convenience of the young student or 
 general reader will be adequately consulted if the 
 papers of a more popular character are marked by 
 an asterisk in the table of contents. In any case it 
 is well to remember that Maitland was both a great 
 discoverer in history and an incomparable populariser 
 of his own and of other men's knowledge. The size 
 of the frame seemed to make little difference to him. 
 Whether he worked in miniature or on a large canvas, 
 his strokes were bold, certain and effective. ' The 
 gladsome light of Jurisprudence' shone upon his toil. 
 
 We have noted an important exception. Maitland 
 contributed eight prefaces to as many volumes of the 
 Selden Society as well as an introduction to the 
 Memoranda de Parliamento or Records of a Parlia- 
 ment holden at Westminster in 1 305, a volume published 
 under the direction of the Master of the Rolls. These 
 treatises, which are sufficient in themselves to furnish 
 a substantial volume, are not included in this collection. 
 They are easily accessible to students and could not 
 without injury be wrenched from the texts which they 
 are intended to introduce. Nor is there any fear that 
 these masterly contributions to historical science will 
 be neglected by those who are concerned with the 
 study of our legal antiquities. The student who would 
 know something of medieval law-reporting, or of the 
 
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IntroducHon vii 
 
 Anglo-French language, or of the early history of the 
 King's Court, or of the growth, extent and decline of 
 manorial jurisdiction must have recourse to the learned 
 and subtle discourses of the first literary Director of 
 the Selden Society. And constitutional history in 
 a wider sense is deep in his debt. If we would really 
 understand our medieval parliamentary life, we must 
 go first to the collection of records which Maitland 
 edited for the Rolls series and out of which, placing 
 ourselves at the threshold of the fourteenth century, 
 we may apprehend the multitudinous clamours of 
 medieval men, the form and shape of a medieval 
 parliament and the course and conduct of its public 
 operations. 
 
 Save where a slight displacement might secure a 
 convenient continuity of subject, the papers in this 
 collection are arranged in the chronological order of 
 their appearance. The first volume concludes with 
 the Inaugural Lecture delivered upon Maitland's ap- 
 pointment to the Downing Chair of the Laws of 
 England in October, 1888, the second contains the 
 scattered work of the Downing Professor previous to 
 the appearance of the History of English Law in 
 1895, the third collects the gleanings of the last 
 eleven years. 
 
 As we leave the great History behind us we observe 
 the flowering of fresh interests out of the massive fabric 
 of the older knowledge. The third volume exhibits 
 the full span of Maitland's versatile energy. Now he 
 is handling the delicacies of the Elizabethan Church- 
 
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viii Introduction 
 
 settlement, a subject far removed from his ordinary 
 studies into which he was drawn by the seductions of 
 Lord Acton ; now he is deep in the metaphysics of 
 the Corporation ; now he appraises the latest achieve- 
 ments of Germany either in the codification of her 
 own modern law or in the editing of our neglected 
 Anglo-Saxon dooms. There is no annotation either 
 here or elsewhere on the part of the Editor, for 
 though much has been written on social and legal 
 history during the last thirty years, it does not in 
 any appreciable degree affect the permanent value 
 of Maitland's work. He wrote little, perhaps nothing, 
 in early manhood which he would have cancelled in 
 later years. He was always learned, always original, 
 and in ninety-nine cases out of a hundred he was 
 transparently right. 
 
 With two exceptions the pieces here given have 
 been previously published. The thanks of the Editor 
 are due to the courtesy of Messrs Methuen who have 
 kindly permitted the re-publication of the Deacon and 
 the Jewess, a paper which forms part of Roman Canon 
 Law in the Church of England, and to Messrs Cassell 
 for their generous permission to make use of Maitland's 
 contributions to Social England. He would also desire 
 to express his gratitude to Messrs Longman, the 
 publishers and to Mr R. L. Poole the editor of the 
 English Historical Review ; to Messrs Stevens the 
 publishers and to Sir Frederick Pollock the editor of 
 the Law Quarterly Review, to Messrs Chapman and 
 Hall the publishers and to Mr W. L. Courtney, the 
 
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Introduction ix 
 
 editor of the Fortnightly Review, to Mr C. R. Buxton, 
 the editor of the Independent Review, to Mr J. Sidney 
 Stone, the editor of the Harvard law Review, to 
 Professor Munroe Smith, the editor of the Political 
 Science Quarterly, to Mr John Murray the pubHsher 
 of the Quarterly Review, to the editors of the 
 Athenaeum, of the Law Magazine and Review, of 
 the Westminster Review, to the Council of the British 
 Archaeological Association, to the Executive Com- 
 mittee of the Society of Comparative Legislation, and 
 to Messrs Sweet and Maxwell, the publishers of the 
 Encyclopedia of the Laws of England for their kind 
 permission to republish articles which appeared in the 
 periodicals or books with which they are respectively 
 connected. 
 
 Fiffally, kind help has been received from Sir 
 Frederick Pollock, and much assistance from the 
 useful bibliography of Maitland's works appended to 
 Mr A. L. Smith's two Oxford lectures. For the 
 crimes of the Index the editor is solely responsible. 
 
 H. F- 
 
 February 191 1. 
 
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TABLE OF CONTENTS 
 
 VOLUME I 
 
 Papers of a less technical character are marked by an asterisk. 
 
 PAGES 
 
 *A Historical Sketch of Liberty and Equality . . i — i6i 
 
 *The Law of Real Property . . 162 — 201 
 
 The Laws of Wales. — The Kindred and the Blood Feud 202 — 229 
 
 The Criminal Liability of the Hundred . . 230 — 246 
 
 *Mr Herbert Spencer's Theory of Society 247 — 303 
 
 The Early History of MaHce Aforethought . . 304 — 328 
 
 The Seisin of Chattels .... . 329 — 357 
 
 The Mystery of Seisin ... . 358—384 
 
 *The Deacon and the Jewess ; or, Apostasy at Common 
 
 Law 385 — 406 
 
 The Beatitude of Seisin ... . 407 — 457 
 
 The Suitors of the County Court . . 458 — 466 
 
 *The Shallows and Silences of Real Life . . . 467—479 
 
 *Why the History of English Law is not written . . 480 — 497 
 
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A HISTORICAL SKETCH OF LIBERTY 
 AND EQUALITY AS IDEALS OF ENG- 
 LISH POLITICAL PHILOSOPHY FROM 
 THE TIME OF HOBBES TO THE TIME 
 OF COLERIDGE \ 
 
 (a) Liberty 
 
 The simplest meaning of the word "Liberty" is 
 absence of restraint. To the political philosopher it 
 means absence of restraint on human action, and, since 
 we are not speaking of the metaphysical freedom of 
 the will, we may say absence of external restraint on 
 human action. Further, as politicians, we are not con- 
 cerned with those restraints which are due to causes 
 over which we have no control ; we have only to deal 
 with those external restraints on human action which 
 are themselves the results of human action. But we 
 cannot say that the Liberty which our philosophers 
 praise is an absence of a// such restraints : the minimi- 
 zation of all restraints on human action is an ideal of 
 politics which has but lately made its appearance. No, 
 the Liberty which our earlier philosophers praise is — 
 (i) The absence of restraints imposed by certain 
 persons ; 
 or (2) The absence of certain forms of restraint ; 
 or (3) The absence of restraints on certain classes of 
 
 actions. 
 To examine at some length the history of Liberty as a 
 political ideal is the object of this present chapter. 
 
 ' Submitted as a dissertation for a Fellowship at Trinity and 
 privately printed in 1875. 
 
 M. I 
 
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2 Political Philosophy in England 
 
 Naturally enough, the political question which most 
 attracted philosophers in the seventeenth century was 
 the question : — How can one man or body of men 
 obtain a rightful title to rule other men. ? The great 
 demand for political theory produced a somewhat 
 injurious effect on the supply. Coleridge has remarked 
 how, in times of great political excitement, the terms 
 in which political theories are expressed become, not 
 more and more practical, but more and more abstract 
 and unpractical. It is in such times that men clothe 
 their theories in universal terms, and preface their 
 creeds by the widest of propositions. The absolute 
 spirit is abroad. Relative or partial good seems a 
 poor ideal ; it is not of these, or those men that we 
 speak, of this nation, or that age, but of Man. Philo- 
 sophers in the seventeenth century were not content 
 with shewing that this or that government would be 
 the best for our nation, that it would make Englishmen 
 good, or virtuous, or happy ; they sought to strengthen 
 their position by shewing that some form of govern- 
 ment is universally and eternally the only right one. 
 God and Nature, said the friends of the Stuarts, have 
 decreed that we should submit to an absolute monarch. 
 God and Nature, replied their opponents, have decreed 
 that the consent of the governed can alone give a title 
 to the governor. Both parties tried to answer the 
 question as to what is the right form of government, 
 without first answering more fundamental questions. 
 They did, of course, occasionally refer to some standard, 
 such as the good or welfare of the community ; but 
 their main effort was to transcend such considerations, 
 and to give a summary decision as to the right form 
 
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Liberty 3 
 
 of government, without first considering the end for 
 which all government should exist. They did not 
 wish to compare, as Aristotle had done, the good and 
 evil of various polities, but rather to shew that such 
 a comparison is unnecessary. Such a procedure was 
 unphilosophical. It is not possible to decide who 
 ought to govern until we know what a government 
 ought to do. By reversing the natural order of these 
 questions political philosophy involved itself in a maze 
 of fictions. 
 
 These fictions were introduced as substitutes for an 
 answer to the question : — What is it that governments 
 ought to do .'' They were really ethical doctrines dis- 
 guised as pieces of history. This mixture of ethics 
 and history was very disastrous. When the limits of 
 the royal power are under discussion, it is often hard 
 to say whether the question is as to the limits which 
 have been placed to the royal power, or as to the limits 
 which ought to be placed to the royal power. In fact we 
 can distinguish no less than four questions as involved, 
 viz.: What limits do (i) positive law, (2) positive 
 morality, (3) ideal law, (4) ideal morality, set to the 
 royal power ? At the present day it would be easy to 
 distinguish these. We can say what power law and 
 opinion allow to the king, without trespassing on the 
 realm of what ought to be. But in the seventeenth 
 century this was harder to do, for several reasons — 
 
 ( I ) The constitution of this country was not nearly 
 so well defined as it now is ; there were gaps in it — 
 points on which there was no case to appeal to. The 
 question, "Who is sovereign?" could scarcely be 
 answered, the fact being that sometimes the king, 
 
 I — 2 
 
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4 Political Philosophy in England 
 
 sometimes the king and Parliament had behaved as 
 sovereign, and been acknowledged as such. 
 
 (2) The confusion as to who was sovereign was 
 increased by that curious doctrine of our Constitution 
 which was being slowly formulated, namely, that though 
 the king is subject to no law, he cannot absolve any 
 other person from the laws made by king and Parlia- 
 ment ; that royal immunity is coupled with ministerial 
 responsibility. 
 
 (3) The legal fiction of the perfection of the 
 English Common Law, the supposition that there is 
 somewhere a code of perfect law, by means of which 
 an English judge may supplement the statutes (though 
 at one stage of our progress necessary for the ad- 
 ministration of substantial justice), produced injurious 
 effects on political theory. Controversialists could so 
 easily pass from the existing law to that law of perfect 
 reason to which our judges appealed when in want of 
 a new principle. This should be remembered when 
 we hear Austin talking of "jargon" and "fustian." It 
 may now be inexcusable to confuse law as it ought to 
 be with law as it is, the ideal with the positive ; but in 
 the seventeenth century it was almost impossible to 
 draw this line, for the ideal was constantly becoming 
 the positive. Our judges were obliged to introduce 
 new principles, and were obliged to introduce them as 
 if they were parts of a pre-existing law. 
 
 In all these ways ethics were mixed with history, 
 the ideal with the positive, until it is difficult to see 
 how far an author is describing what is, how far he is 
 giving an opinion as to what ought to be. 
 
 The main question which the philosophers of the 
 
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Liberty 5 
 
 seventeenth century had to answer was, How can one 
 man, or body of men, acquire an authority over others 
 which these latter ought to obey, and ought to be 
 made to obey ? The answers which were given to this 
 question were two. (i) God (or nature) has given to 
 some men a title to rule, independent of all consent. 
 (2) A title to rule can only be acquired by consent. 
 These answers took many different forms, and some- 
 times we find intermediate theories, but the twofold 
 division must serve our present purpose. These two 
 theories of the rightful title to rule we may call the 
 natural and the conventional. 
 
 I. Those who asserted that some men have a title 
 to rule others, which does not depend upon consent, 
 were frequent in their appeals to Aristotle. Aristotle 
 was, for many reasons, the most popular of the classical 
 writers on politics. In no department of philosophy, 
 except perhaps that of deductive logic, has the influence 
 of Aristotle been so long and so strongly felt as in that 
 of politics. No history of the British Constitution 
 would be complete which did not point out how much 
 its growth has been affected by ideas derived from 
 Aristotle. The common sayings about the excellence 
 of a mixture of the simple forms of government, about 
 subjecting the rulers to the laws, have an Aristotelian 
 as well as an empirical origin, and accepted common- 
 places are powerful agents in moulding a constitution. 
 We cannot indeed ascribe any one very definite ten- 
 dency to Aristotle's influence, for his Politics are 
 singularly undogmatic ; but his disinterested curiosity 
 discovered many-sided truths, some portions of which 
 every school of political philosophers has been willing 
 
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6 Political Philosophy in England 
 
 to accept. On this very question of the title to rule 
 he could not fairly be appealed to by any of our seven- 
 teenth century controversialists, save perhaps Algernon 
 Sydney. It is true that Aristotle held that some men 
 have a title to rule others even when the consent of 
 the latter has not been asked, but his idea of a natural 
 title to rule scarcely suited the Caroline divines and 
 lawyers. The classical, ideal polity, whether as con- 
 ceived by Aristotle or as conceived by Plato, is an 
 aristocracy, or monarchy of merit. The test of a man's 
 natural title to rule is the possession of the power and 
 will to rule well. No other test of a natural title was 
 (as far as I know) ever dreamt of by a Greek philo- 
 sopher. Now Sir Robert Filmer and his friends were 
 glad enough to find Aristotle maintaining that some 
 men are born to rule, and others to serve ; but this 
 doctrine has its dangerous side — it leads to such specu- 
 lations as those of Sydney, about the right of the 
 virtuous man to rule. What Filmer and his colleagues 
 had to justify was the feudal notion of hereditary right. 
 A justification of feudalism was not to be obtained 
 from Aristotle, so they turned to the other great source 
 of authority — the Bible. 
 
 It was said that God has given the sovereignty of 
 the whole world to Adam and his heirs (or heirs males) 
 for ever ; that the heir of Adam, or failing him, the 
 heir of the last person who filled the place of Adam's 
 heir, is rightfully king. This is as accurate a statement 
 as I can make of a theory which, though legal in its 
 pretensions, was never stated with legal accuracy. 
 With this was combined the theory that civil power 
 is in its origin paternal or patriarchal power. Now, as 
 
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Liberty 7 
 
 far as history is concerned, the Divine Right School 
 were nearer the truth than their opponents. Modern 
 writers have taught us that the first rulers are fathers 
 of families, that the fiction of relationship between the 
 governors and the governed is kept up long after the 
 fact has ceased, and that, on the death of the father of 
 the family, common consent allows his power to devolve 
 upon his eldest son. The Bible supplied these facts, 
 and was supposed to supply them as precedents. But 
 much more than this was wanted. It was necessary to 
 shew that God has decreed that the power of a dead 
 monarch shall devolve according to certain ascertain- 
 able canons of inheritance; to shew {e.g.) that the Salic 
 law is or is not such a canon, or that it is so in France, 
 but not in England. It is needless to say that nothing 
 of the sort could be done. The law which regulates 
 the Royal Succession in England is only a law of God, 
 if the whole of our common and statute law is a law of 
 God. It is not even a part of Jus Gentium, the law 
 common to all nations. Every Christian, it is true, 
 looks upon his duties as divinely appointed ; obedience 
 to rulers is, within certain limits, a duty, and, a Christian 
 would say, a duty set us by God ; but this does not 
 imply that God has singled out this or that man to 
 rule, unless we use the words in a sense which makes 
 every event, good or bad, the result of Divine will. 
 The appeal to the Bible was singularly unfortunate. 
 The Old Testament is the history of a nation which 
 sinned in asking for a king, and which more than once 
 interfered with the hereditary succession of the royal 
 line. Many Puritans believed that they had precisely 
 the same justification for killing Charles that Jehu had 
 
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8 Political Philosophy in England 
 
 for killing Ahab. The New Testament contains many 
 commands of obedience to de facto governments, not 
 one rule for selecting a sovereign de y'ure ; it is the 
 powers that be, not the powers that ought to be, that 
 we are to obey ; indeed, quotations from the New 
 Testament come better from Hobbes, the supporter of 
 de facto governments, than from the preachers of the 
 Divine right of hereditary monarchy. It is almost 
 impossible to believe that some of the arguments drawn 
 from Scripture by the friends of the Stuarts were put 
 forward in good faith. In the whole history of delusion 
 there is nothing stranger than the claim of sovereignty 
 for Adam's heir. Many people seem to think that this 
 claim was a fiction of Whigs like Locke, got up to 
 discredit the Tories ; but as a fact we find the argu- 
 ment repeated by writer after writer of undoubted 
 probity. Failing the support of the Scriptures, there 
 was nothing for the theory to rest on save expedience, 
 and this was too low a ground for the preachers of 
 Divine right. No one (as far as I know) has asserted 
 that we perceive intuitively that hereditary monarchy 
 is at all times, and in all places, the one right form 
 of government. The nearest approach to such an 
 assertion that I can find is in the Jus Regium of Sir 
 George Mackenzie, a reply to Buchanan's De Jure 
 Regni, where it is said that hereditary succession is 
 according to the law of nature ; but, after all, the law 
 of nature appears only to give us the truism that in a 
 hereditary monarchy the heir should succeed \ This 
 book of Mackenzie's, for which he received the thanks 
 of the University of Oxford, is a most extraordinary 
 ^ Mackenzie's Works, vol. ii. p. 472. 
 
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Liberty 9 
 
 display of the weakness of the Divine Right School, 
 and makes the grave faults of Locke's works seem 
 venial. If the purely Scriptural argument fails, then 
 the whole question of the best form of government is 
 again thrown open. If its defenders cannot shew that 
 hereditary monarchy has been expressly commanded 
 by God, they may be required to shew that it answers 
 to some standard of political good, that it would make 
 a nation moral or happy. 
 
 We may notice two forms of the theory : the 
 stricter, which, giving to Adam absolute power, did 
 not admit that any part of this had been alienated by 
 him or his successors ; and the milder, which allowed 
 that successive kings had granted away portions of the 
 originally complete power which could not be resumed 
 by themselves or their successors. The first form was 
 advocated by Filmer, the second by Clarendon. 
 
 Filmer was an acute controversialist, and hit both 
 Hobbes and Milton some hard blows. But even he is 
 obliged to admit that a prince is bound by his "own 
 just and reasonable conventions " ; the prince however 
 being the judge of their justice'. This concession 
 renders his apology for absolute monarchy weaker 
 than that of Hobbes, who, by making the prince the 
 fountain of morality as well as of law, sought to deprive 
 the subjects of any ground from which they might 
 criticise the prince's acts. 
 
 The more moderate believers in Divine hereditary 
 right found a spokesman in Clarendon. Filmer had 
 read the De Cive "with no small content'," Clarendon 
 
 ^ The Power of Kings, etc. 
 
 ^ Observations on Aristotle's Politics, etc. 
 
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lo Political Philosophy in England 
 
 had never read a " book containing so much sedition, 
 treason, and impiety as this Leviathan^." Like Roger 
 Coke, and others, he thought that Hobbes had damaged 
 the king's cause. The king, he held, had been invested 
 by God and Nature with complete power, but some of 
 this had been irrevocably granted away by charters, 
 and so forth ; he speaks of monarchical power as a 
 trust, and holds the king bound by his own and his 
 ancestors' promises^ Sir George Mackenzie made a 
 similar damaging admission ; he ^oes further ; the 
 king may not interfere with the rights of property'. 
 Now this is to surrender the stronghold of Divine 
 right. If power be a trust, if it be possible to diminish 
 it by grant, we must, as Hobbes knew well, retire from 
 the high ground of natural right to the low ground of 
 advisability. For the question arises— Is cestui que 
 trust to have no remedy against his trustee in case of 
 a breach of trust ? What if the king attempt to regain 
 his surrendered rights ? Thus unless we can accept 
 the strictest form of the theory, and go beyond Filmer 
 himself in freeing kings from all their promises, the 
 question is again thrown open. Though God may 
 have given the sovereignty upon trust to Adam and 
 his heirs, may they not forfeit it ? Clarendon's book 
 was really a heavy blow to the straiter sect of the 
 Divine Right School, for he brings into prominence the 
 discrepancies between Hobbism and common sense, 
 and Hobbes' conclusions, though not his premises, 
 were dear to the most thorough of the monarchical 
 party. In many respects it is a very just criticism of 
 
 ^ A brief View... the Leviathan, p. 319. 
 
 ^ pp. 72, 122. ' Vol. II. p. 451. 
 
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Liberty 1 1 
 
 Hobbes, it is the protest of a historian against Hobbes' 
 practice of deciding historical and constitutional ques- 
 tions " by speculation and deduction," from psycho- 
 logical generalities. It is like Macaulay's protest 
 against James Mill's Essay. 
 
 MedicBval feudalism masquerading in a Hebrew- 
 dress was a strange apparition. Of such a fiction as 
 the original contract we may say it was never invented, 
 it grew ; but somebody must have invented this claim 
 for Adam's heir^and to whom the honour belongs 
 I cannot say. There seems no evidence of its having 
 been put forward prior to the accession of the Stuarts, 
 and it appears to be of English origin. In the Political 
 Discourses of James Tyrrell, a book in which the 
 rival theories of government are discussed with much 
 moderation, it is not suggested that any early eccle- 
 siastical authority could be found for this doctrine. It 
 disappeared as suddenly as it appeared. Sydney and 
 Locke exposed the ineptitudes of Kilmer's Old Testa- 
 ment history so thoroughly, that the work has never 
 wanted doing again. But their arguments were power- 
 fully backed up by the conduct of the clergy. Hobbes 
 had seen that the alliance between the Church and 
 absolute monarchy was accidental, and tried to justify 
 the latter on non-religious as well as religious grounds. 
 The clergy had made a large mental reservation when 
 preaching the Divine right of kings, as was shewn 
 when they refused to read the Declaration. 
 
 But below the talk about Adam's heir there lay a 
 just protest against the theory, then rising into power, 
 which admits of no title to rule, but a title by consent. 
 This, which I call the conventional theory, did not 
 
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12 Political Philosophy in England 
 
 fairly start on its course until the time of Locke, but 
 we see it in Hooker, Milton, and Sydney, struggling 
 with the theory that some men have a title to rule 
 others without first obtaining their consent — that we 
 have a duty to obey governments to which we have 
 not consented. This theory of a natural title to rule 
 had been mixed with the absurdities of Filmer, Heylin, 
 and Mackenzie, and fell into bad repute ; but we find 
 it rising again in Hume, who does not require the 
 consent of the governed in order to make government 
 just. The utilitarian may have to admit a title to rule 
 not derived from consent ; and though for a moment the 
 results of utilitarianism and of the conventional theory 
 appeared to coincide when James Mill and Bentham 
 put forward "the junction-of-interests principle," as a 
 deduction from " the greater happiness principle," they 
 have since fallen asunder, and will not again be easily 
 united. But of this more -hereafter. 
 
 1 1 . We must now pass to the conventional theory 
 of government, having described the antagonist with 
 which, at the outset, it had to contend. Filmer and 
 Clarendon did not admit that Liberty was on their 
 opponents' side, but it must be allowed that there is 
 nothing in the bare idea of a government not based 
 upon consent that can be said to answer to our idea of 
 freedom ; the upholders of the conventional theory can 
 much more speciously claim that the government which 
 they would establish is " a free government." 
 
 Filmer and his friends might protest, with what 
 truth remains to be seen, that the conventional theory 
 leads not to Liberty but to license, but this theory has 
 been generally known as the theory of Civil Liberty. 
 
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Liberty 13 
 
 It might be expressed thus — Men have a right to be 
 under no government save that to which they have 
 consented. Government ought to be founded on agree- 
 ment or contract. A word as to its origin — Christian 
 theology contemplated the relations which exist be- 
 tween the Supreme Ruler and his subjects as partly 
 dependent on a covenant, and it was natural (though 
 not necessarily logical) that these should be taken as 
 types of the relations which ought to exist between an 
 earthly ruler and his subjects. Again, laws first appear 
 in the history of mankind as the formulation of already 
 existing customs, and not as the expression of the will 
 of a superior. Hence the essential distinction between 
 an agreement and a law is one which is slowly evolved, 
 and we see that by some of our earlier philosophers a 
 law was still looked upon as obtaining its binding force 
 by being the outcome of a contract. We may add that 
 the histories of Greece and Rome dazzled the eyes of 
 those to whom the new learning was opened. From 
 them, more especially from the history of Rome, men 
 learnt to look upon the right to a share in the govern- 
 ment (the right of self-government) as one of the 
 privileges of a citizen, forgetting probably how small a 
 portion of the inhabitants of Rome were citizens. 
 
 We may also remark that throughout the history 
 of English ethics there runs a tendency to resolve all 
 duties into the duties of speaking the truth, and of 
 fulfilling contracts. It has been thought that there is 
 a peculiar irrationality in letting our deeds and words 
 contradict each other. Even Hobbes occasionally falls 
 into this strain of language\ an inconsistency which 
 1 Works (ed. Molesworth), iii. 119. 
 
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14 Political Philosophy in England 
 
 did not escape the eye of Clarke\ The " rational " 
 moralists, looking at a right action as a recognition of 
 a proportion or fitness, were naturally led to identify 
 right action and true affirmation. This tendency to 
 resolve all duties into truthfulness and fidelity is 
 observable in the attempt to ground all our duties to 
 God on a solemn league and covenant, and in the 
 attempt to base all our political duties on some agree- 
 ment or contract. Perhaps the reason for this is, that 
 "Speak truth" and "Keep promises" are supposed 
 to admit of fewer exceptions than do other ethical 
 maxims. 
 
 At any rate the theory that sovereignty ought to 
 be founded on consent is laid down with great distinct- 
 ness by Hooker, who contrasts it with the doctrine of 
 Aristotle. He says that men knew that "strifes and 
 troubles would be endless, except they gave their 
 common consent all to be ordered by some whom they 
 should agree upon : without which consent there was 
 no reason that one man should take upon him to be 
 lord, or judge over another ; because, although there 
 be according to the opinion of some very great and 
 judicious men, a kind of natural right in the noble, and 
 wise, and virtuous, to govern them which are of servile 
 disposition ; nevertheless, for manifestation of their 
 right, and men's more peaceable contentment on both 
 sides, the assent of them who are governed seemeth 
 necessary^." Here we see the two theories lying side 
 by side, and Hooker, in making his choice of that 
 which requires the consent of the governed, was doing 
 what was of more importance to the world than he can 
 
 ^ Evidences, etc. (ed. 1728), p. 178. ^ Ecd. Pol. i. x. 
 
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Liberty 15 
 
 have been aware of. This theory passed from Hooker 
 to Locke, from Locke to Rousseau, and has profoundly 
 affected the history of mankind. For some time after 
 its appearance it remained comparatively powerless, 
 for it was coupled with no very definite principle laying 
 down whose consent it is that we must require, or what 
 is to be considered evidence of such consent. It did 
 not become really active until it was allied with the 
 doctrine that all men are equal, and that therefore 
 when the governed give their consent every man is to 
 count for one. The alliance was not firmly established 
 until the time of Locke ; but long before this there is 
 observable a tendency, especially among the Puritans, 
 to look upon all men as equal, a tendency which had 
 its origin in Christianity itself. Though submission to 
 the powers that be is a cardinal virtue in the Christian 
 scheme, and though it would be even harder to find 
 the conventional than to find the hereditary theory of 
 government in the Bible, there is in the Christian idea 
 of all men as equal in the sight of Omniscience, a germ 
 of that doctrine of natural equality which was required 
 in order to give definiteness to the conventional theory. 
 S'^jU.os /iev yo.p iyivero Ik tov icrous otlovv ovTas otecrdaL 
 dirX-ws To-ous eTi/at\ But the idea of Christian equality 
 was not definite enough ; and we do not find that 
 Puritans, such as Milton, accepted that equality of 
 faculties which is the starting point of Locke's system. 
 The difficulty of reconciling the natural and con- 
 ventional theories of authority is forced upon us in 
 reading Milton's political works. For, on the one 
 hand, he held that all sovereignty is from the people ; 
 ^ Arist. Fol. V, i. 
 
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1 6 Political Philosophy in England 
 
 on the other hand, he was far from accepting the demo- 
 cratic ideal, that in matters of government every man 
 should have one vote, and that a majority must decide. 
 He justifies the action of the army in interfering with 
 the Parliament. " The soldiers judged better than the 
 Great Council, and by arms saved the Commonwealth, 
 which the Great Council had almost damned by their 
 votes\" Indeed, it is difficult to see how Cromwell's 
 proceedings could be justified by one who held that all 
 government ought to rest upon the consent of the 
 people. Filmer points out this difficulty forcibly, and 
 justly. Here we see, he argues, what these Puritans 
 mean by "the People," it is "the best principled" part, 
 and the Army is the sole judge of good principles '^ 
 It is impossible to reconcile the Puritan ideal of a 
 reign of the Saints with the ideal of a Government 
 founded on consent ; the Saints were to reign whether 
 sinners liked it or not. If our great dogma that 
 government ought to rest on consent be to differ from 
 "the simple rule... the good old plan," the consent 
 required must be more than a mere absence of resist- 
 ance ; and if we require more than this, Cromwell had 
 as little title by consent as had Charles. How little 
 Milton cared for the popular voice may be seen in his 
 letter to Monk written just before the Restoration. 
 He wishes that good republicans should be returned 
 to Parliament, and if the people " refuse these fair and 
 noble offers of an immediate Liberty," then Monk is to 
 use his " faithful veteran army." And this is called 
 "A ready and easy way to establish a free Govern- 
 ment." A ready and easy way no doubt, but in what 
 ^ Defence. . . against Salmasius. '^ Observations, etc. 
 
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Liberty i y 
 
 sense would a Government established by a military 
 coup d'^iat be ' free ' ? But sometimes Milton throws 
 aside the pretence of founding government upon the 
 consent of the people. " More just it is doubtless, if 
 it come to force, that a less number compel a greater 
 to retain what can be no wrong to them, their liberty, 
 than that a greater number, for the pleasure of their 
 baseness, compel a less most injuriously to be their 
 fellow slaves'." Here the conventional theory is thrown 
 aside ; those who can, and will preserve liberty {i.e., a 
 popular form of government), have a natural title to 
 rule. Milton was in a great strait, for it was becoming 
 evident that if the people agreed upon any government, 
 it would be government by their old tyrants. 
 
 The same difficulty occurs in Algernon Sydney's 
 Discourses Concerning Government. The title by 
 nature is not here the Puritan title of God's elect, but 
 the philosophic title of the wise and virtuous man. 
 Sydney often insists on the natural inequality of men. 
 " That equality which is just among equals is just only 
 among equals ; but such as are base, ignorant, vicious, 
 slothful, or cowardly, are not equal in natural or 
 acquired virtues to the generous, wise, valiant, and 
 industrious ; nor equally useful to the societies in 
 which they live ; they cannot therefore have an equal 
 part in the government of them ; they cannot equally 
 provide for the common good ; and it is not a personal 
 but a public benefit that is sought in their constitution 
 and continuance.... If the nature of man be reason, 
 ' detur digniori,' in matters of this kind, is the voice of 
 nature'." Here is the natural theory, but when we 
 1 A Ready and Easy Way, etc. ^ Discourses, ch. ii. § i. 
 
 M. 2 
 
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1 8 Political Philosophy in England 
 
 turn to Sydney's definition of liberty we find: — "^ 
 desire it may not be forgotten, that the liberty asserted 
 is not a licentiousness of doing what is pleasing to 
 every one against the command 'of God, but an exemp- 
 tion from all human laws, to which they have not given 
 their assent^" Here is a particularly strong statement 
 of the conventional theory, it is stronger than Locke's 
 definition. "The liberty of man in society is to be 
 under no other legislative power, but that established 
 by consent in the Commonwealth ; nor under the 
 dominion of any will, or restraint of any law, but what 
 the legislative shall enact according to the trust put in 
 it I" Sydney requires the assent of the people to the 
 laws, Locke requires that the government established 
 shall have been consented to, and shall legislate accord- 
 ing to certain rules which have also been consented to. 
 But though Sydney uses this very strong expression, 
 an expression which at once identifies Civil Liberty 
 and Democracy, this is not his usual language. He 
 would, I think, have been content if the legislative 
 body were elected by the people, or even if the outlines 
 of government were consented to by the people. But 
 even this requirement of popular consent is scarcely to 
 be harmonized with the "detur digniori" which he 
 elsewhere makes his motto. 
 
 Locke and Sydney speak as if civil governments 
 ought to be based on consent, and they also assert 
 that good governments have as a fact been the result 
 of an agreement between the rulers and the ruled. 
 Hobbes also makes his Commonwealth rest upon a 
 covenant. We may ask how far these authors supposed 
 ' Discourses, ch. i. § ii. ^ Essays on Government, ii. 22. 
 
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Liberty 19 
 
 that governments have been the resuh of agreement, 
 how far the original contract was for them a fact ? Here 
 we must draw a distinction. Hobbes, the defender of 
 estabHshed governments, speaks very positively about 
 a contract being the foundation of all dominion, but he 
 does not make it clear whether this contract was made 
 once for all, or whether it is renewed by each genera- 
 tion of citizens. He knows nothing of a tacit contract, 
 nor does he speak as if the contract was made for self 
 and posterity, or for self, heirs, and assigns in respect 
 of property possessed. He always speaks as if every 
 citizen covenanted for himself, and for himself only. 
 But at the same time he speaks as if the social contract 
 had been made once for all. I do not think that 
 Hobbes believed that any such contract has really 
 been made ; he looked upon the conventional theory 
 as an apt fiction, expressing the duties of governors 
 and governed. But with Sydney and Locke the case 
 was different, they really thought that all rightful 
 government had been the result of an agreement 
 between the rulers and the ruled ; they did not for one 
 moment admit that the conventional theory was only a 
 convenient fiction; they maintained that where there 
 had been good government, that government was the 
 result of a social contract, and that no government 
 could be good which did not rest on such a contract. 
 
 Now, as a piece of history, the conventional theory 
 has no foundation, and is far inferior to the patriarchal 
 theory. Not one single instance of a covenant by a 
 whole nation, or even by that part of a nation which is 
 not under what may be called natural disabilities, can 
 be produced. It is not until a late period in the history 
 
 2 — 3 
 
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20 Political Philosophy in England 
 
 of men that the idea of settling their social relations by 
 contract arises. The constitutions of the American 
 States cannot be appealed to in support of the historical 
 truth of the theory, for they were the results of a belief 
 in the theory. 
 
 Clarendon and Filmer triumphantly ask for one 
 solitary example of a social contract, and Sydney and 
 Locke did try hard to produce one. Sydney promises 
 to prove that these contracts are historical facts, " real, 
 solemn and obligatory." But it is not unworthy of 
 remark that this promise is followed by a hiatus in his 
 manuscript, and is never fulfilled^ Locke again tries 
 to find an answer, but is compelled to content himself 
 for the most part with saying that there is no evidence 
 to the contrary ■*. Elsewhere he admits the patriarchal 
 origin of Government'. Then he argues for the proba- 
 bility ^ priori of there having been a social contract^ 
 and finally he changes his ground, the compact was 
 not made once for all when men left the state of nature, 
 but is made by every citizen ^ 
 
 But on the whole, though Milton and Sydney 
 admit the conventional theory to be true, and some- 
 times state it in strong terms, their use of it is not so 
 much constructive as destructive. They appeal to it 
 in order to put the Divine Right School out of court, 
 and, when this is done, they fall back upon the natural 
 inequality of men ; the Saints, those who would "reform 
 the Reformation," or the wise and virtuous have a 
 natural title to rule, and it is hard to see how they 
 would reconcile this with that conventional theory 
 
 ^ Discourses, ii. xxxii. ^ Gov. ii. loi. 
 
 ^ II- 76. * II. 112. = II. 117. 
 
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Liberty 2 1 
 
 which only gained its full strength when Locke, 
 following Hobbes, preached that men are by nature 
 equal. 
 
 Here, in a sort of parenthesis, we may notice one 
 of the greatest of our great Commonwealthsmen. 
 Harrington was one of the first to oppose Hobbes on 
 what would now be called utilitarian grounds. Accept- 
 ing Hobbes' identification of reason and interest, he 
 decides that it is not the interest of the individual, 
 but the interest of mankind, which is Right Reason'. 
 The argument is rather fanciful, and assumes that the 
 different parts of inanimate nature fly to each other's 
 assistance, so that the whole may be perfect ; and man, 
 he thinks, must not be "less just than the creature." 
 "Now compute well," he says, "for if the interest of 
 popular government come the nearest to the interest of 
 mankind, then the reason of popular government must 
 be the nearest to Right Reason." This he decides, 
 by rather inconclusive reasoning, must be the case. 
 Democracy, moderated by allowing to an aristocracy 
 the power of proposing, though not of making laws, is 
 the best form of government. He is far from having 
 arrived at Locke's point of view, and will do all he can 
 to give authority to the best and wisest. He does not 
 ignore good birth and good breeding as qualifications 
 for power. " For so it is in the universal series of 
 story, that if any man founded a Commonwealth he 
 was first a gentleman," his examples include Moses, 
 Romulus, and othersl However, the people or their 
 representatives ought to have the power of making 
 laws. 
 
 ' Harrington's Works (ed. Toland), p. 44. ^ p. 56. 
 
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22 Political Philosophy in England 
 
 Harrington is a very interesting figure in the history 
 of political philosophy. At a time when Hobbes would 
 content himself with nothing under a universal pro- 
 position, a proposition applicable, not to these or those 
 men, but to Man, Harrington saw the importance of 
 consulting the history of that nation for which we are 
 setting up an ideal. Again, he saw how few political 
 ideals are realizable, and while his contemporaries were 
 talking as if we had only to choose the best form of 
 government, and then to try and establish it by direct 
 means, Harrington decided that as long as the distri- 
 bution of property remains constant, only one form of 
 government is possible ; the balance of power depends 
 on the balance of property\ Most certainly this is not 
 a complete analysis of the positive conditions which 
 make the establishment of a government possible, and 
 Hume's criticisms on Harrington are just^ but it was 
 a step in the right direction, and Hume recognized it 
 as such. In fact Harrington is particularly interesting 
 because he would seem to have exercised a consider- 
 able influence on Hume. Hume says that the Oceana 
 "is the only valuable model of a Commonwealth that 
 has yet been offered to the public^" and, even re- 
 membering Plato's great work, there is much truth in 
 this praise ; for Harrington tried always to remember 
 that an ideal which requires an essential alteration in 
 the nature of man has but little value. 
 
 Something must here be said of Hobbes' apology 
 for de facto governments and existing laws, an apology 
 which is the centre of his philosophy. In Hobbes' 
 
 ' Harrington's Works (ed. Toland), pp. 40 et seq. 
 
 ^ Hume's Essays, i. vii. ' Hume's Essays, 11. xvi. 
 
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Liberty 23 
 
 day such an apology was by no means unnecessary. 
 Puritanism asserting the claims of conscience and the 
 rights of private judgment, had rushed into a sort of 
 anti-nomianism. No laws were to be obeyed which 
 did not come up to some standard of ideal justice. It 
 must be doubtful which is the greatest error in theory, 
 the assertion of Hobbes that positive laws are the 
 measure of justice, or the Puritan doctrine that laws 
 which are not good are not to be obeyed, though there 
 can be little doubt that the latter is the more dangerous. 
 The Puritans set up an ideal law of God, discoverable 
 partly by study of the Scriptures, partly by the light of 
 reason, and positive laws which did not agree with this 
 law of God were looked upon as void. 
 
 The jural conception of morality has always been 
 common ; if we do not find it in Greek philosophy, we 
 at least find it in Greek poetry'. With the Bible 
 before him, this is the conception most natural to the 
 Christian. Now, if we take the jural view of morality, 
 there appears more probability of a conflict between 
 civil law and morality than if we take an aesthetic view. 
 But this was not all. '' Jus Naturce" had meant much 
 more than is meant by our expression "the moral law." 
 The idea oi Jus Naturce sprang from the Jus Gentium 
 of Rome, when brought into contact with the later Stoic 
 philosophy. Jus Gentium was the law administered to 
 strangers at Rome, a law drawn from the observances 
 common to those nations to which the strangers be- 
 longed. A law which is found in all communities may 
 be looked upon as natural ; the laws of this or that 
 state may be due to caprice, to casual local circum- 
 1 Soph. Antig. vv. 445 et seg. 
 
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24 Political Philosophy in England 
 
 stances, in a word, they are artificial ; but a law which 
 is found in all states must be due to the very nature of 
 man. Having gone thus far, it is easy to look upon 
 Jus Gentium as more truly a Divine law than the laws 
 of any one state can be. It is the result of man's 
 nature as God made it. And thus we pass ixova Jus 
 Gentium, a real positive law — ^just as positive as the 
 maxims of our modern Court of Chancery — to the Jus 
 Naturce, a Divine law, to which all civil law ought, at 
 least in its outlines, to conform. In a word, the law of 
 nature comes to mean ideal law — law as it ought to be. 
 But another change lay before it. By the time of 
 which we are speaking, the idea oi Jus Gentium- is fast 
 fading away ; scarcely a trace of it remains in Grotius' 
 celebrated definition ; the law of nature is fast becom- 
 ing a synonym for the moral law, i.e., a code of ideal 
 morality. The law of nature of Butler's Sermons is 
 no longer even ideal law ; it is ideal morality. But 
 among the political writers of whom we are speaking, 
 " the law of nature " retained some of its old force — it 
 still meant something more legal and more " positive " 
 than our " morality." The law of nature might still be 
 appealed to in our courts of justice as supplementing 
 and even overriding the statutes of the realm. The 
 courts, particularly the Court of Chancery, were by no 
 means averse to administering what passed as "natural 
 law." Under this disguise they frequently introduced 
 their new principles. The fiction " aequitas est per- 
 fecta quoedam ratio, quoe jus scriptum interpretatur 
 et emendat " was still kept up, and this perfecta ratio 
 was a faculty discovering the law of nature. It is 
 not uninteresting to notice that Cumberland dedicates 
 
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Liberty 25 
 
 his book De Legibus Natures — a work on what we 
 should call morality — to the Chancellor, as the proper 
 custodian of the law of nature, so fused were the ideas 
 of law and morality in the idea of natural law. Thus 
 the law of nature was sometimes an ideal for the law 
 maker, sometimes an ideal for the moralist, sometimes 
 an ideal for the law administrator, the judge. Between 
 these different meanings it was easy to flit, and con- 
 fusion was the result. 
 
 This conception of natural law led to a disrespect 
 of positive law, to that sort of anti-nomianism which we 
 find in Milton's works. Milton defended the regicides 
 against Salmasius by saying that the king's execution 
 was legal, it was according to the law of God, Reason, 
 and Nature. If a statute can be produced giving 
 tyrannical power to a king, this being contrary to 
 God's will, to Reason, and to Nature, " is not of force 
 with us." It will be observed that he does not say 
 that if the king's execution be contrary to the positive 
 law of the land it is illegal, but at the same time it is 
 morally good. No, he says, though it be opposed to 
 our statutes it is legal, for it is according to the law of 
 God ; thus it is just as legal as the execution of a 
 murderer under our common law. And Milton could 
 justify himself by appealing to the procedure of law 
 courts which daily professed to administer the law of 
 nature. Sydney, again, heads a chapter with the 
 startling statement " that which is not just is not law, 
 and that which is not law ought not to be obeyed'." 
 Milton and Sydney would probably not have said that 
 we can never have a duty to obey positive law as 
 ^ Discourses, etc., ni. xi. 
 
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26 Political Philosophy in England 
 
 positive law, that we can never have a duty to obey 
 positive law when it commands some action which, 
 were it not for that law, would be bad, but they 
 habitually use language placing no limit to our duty of 
 disobeying unjust laws. All men, when not engaged 
 in controversy, would probably say that the truth lies 
 between Hobbes and Milton, that the mere fact that 
 positive law commands an action is some reason why 
 we should do it ; that we have a duty to obey the law 
 of the land because it is the law of the land ; but that 
 this duty may conflict with other duties, and in such 
 cases we must appeal to some higher rule of ethics. To 
 the utilitarian this is obvious, and most non -utilitarian 
 moralists would admit a special duty of Order or 
 Obedience to Law. Thus we cannot say with Hobbes 
 that we never have a duty to disobey positive law, nor 
 with the Puritans that positive law cannot make it our 
 duty to do what, in the absence of positive law, would 
 have been indifferent, or even bad. 
 
 It has scarcely been sufficiently noticed that Hobbes 
 was, to some extent, an eclectic in politics. The pre- 
 mises are the premises of Sydney and Locke, but the 
 conclusion is the conclusion of Filmer. He justifies 
 absolute monarchy by referring, not to the natural 
 inequality of men, but to their natural equality. He 
 will not say with Aristotle that some men are made to 
 rule, others to serve, for this is contrary to both reason 
 and experienced He knew well that the arguments of 
 the Divine Right School would never stand examina- 
 tion, and he conceived the grand idea of basing politics 
 on a true system of ethics, which should itself rest on a 
 ' Hobbes' English Works (ed. Molesworth), vol. ni. 140, 141. 
 
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Liberty 27 
 
 true psychology. He grants to. the Commonwealths- 
 man all that he seems to require. Men are born with 
 equal faculties ; they are born free ; all government 
 ought to rest upon consent. But he attempts to turn 
 the ideas of natural liberty and natural equality into a 
 defence of de facto governments. He does not succeed 
 in this, for the social covenant on which he allows 
 government to rest is obviously a mere fiction, and he 
 would have found it hard to answer the Common- 
 wealthsman who said, "You admit that I wa:s born 
 free, and that I have a natural right to be under no 
 government save that to which I have consented. 
 Now I affirm that I have not consented to King 
 Charles' government." If I understand Hobbes aright, 
 he meant that the mere fact of the existence of a 
 government must be taken as conclusive evidence of 
 the consent to it of all those who enjoy its protection, 
 all express declarations to the contrary notwithstanding, 
 and that men are morally and religiously bound by 
 their supposed consent. But such a theory is very 
 unstable, the premises are the legitimate property of 
 the democrat, not of the apologist for de facto govern- 
 ments. If it be allowed that all men are naturally free 
 and equal, if all rightful government is founded on 
 consent, men will not be put off with a fictitious 
 consent ; they will say, " You admit that consent is 
 necessary, a fictitious consent cannot be necessary, the 
 necessary consent must be real." 
 
 Undoubtedly the main doctrine of Hobbes' politics 
 is that we ought always to obey the existing govern- 
 ment, and our duty of obedience arises from the fact, 
 or rather the fiction, that we have covenanted with our 
 
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28 Political Philosophy in England 
 
 fellows to do so. This being so, we should naturally 
 expect that Hobbes had some peculiar notion of the 
 superior obligation of the duty of fidelity when com- 
 pared with other duties. But we find that it is only 
 self-love, or rather a desire for self-preservation, which 
 obliges us to enter into the social covenant, and abide 
 by it when made. He has to shew that prudence, or 
 the desire for a tolerable life, counsels us to surrender 
 our natural right to all things, hand it over to some 
 sovereign, one or many, and abstain from all attempts 
 to resume it. Hallam thinks Hobbes' assertion, that 
 all men have by nature equal capacities, not requisite 
 to his theory'. To me it appears not only requisite, 
 but absolutely necessary. Hobbes' chief concern is to 
 prove that men are equal in their power of hurting 
 others, so that he may shew that it is to the advantage 
 not only of the weak but also of the strong to enter 
 civil society. " They are equals," he says, " who can 
 do equal things one against the other ; but they who 
 can do the greatest thing, namely, kill, can do equal 
 things. All men among themselves are by nature 
 equaP." He certainly does go further than this, and 
 affirms that all men are equal in their mental faculties, 
 but this also was necessary, for it was incumbent on 
 him to get rid of the Aristotelian natural title to rule. 
 What however concerns him most is to shew that no 
 man is so strong in body or mind that it will profit 
 him to remain in the state of nature. He ought 
 however to prove not only that every man will find it 
 profitable to enter the civil state, but also that pru- 
 dence, or the desire of self-preservation, counsels us to 
 ' Hist. Lit., vol. ii;, p. 538. ^ Hobbes' English Works, vol. 11. 7. 
 
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Liberty 29 
 
 refrain from occasional backslidings towards the state 
 of nature. This is one of his attempts at proof. Men, 
 he says, are so equal in their power of hurting each 
 other that it will not profit any man, however strong 
 in body or mind, to remain in or return to the state of 
 nature. But to this he adds a consideration which is 
 rather out of place in his system. There would be a 
 sort of absurdity in breaking our covenants, a sort of 
 self-contradiction'. He does not however make it clear 
 that prudence, or the desire for self-preservation, can 
 never counsel us to contradict ourselves ; and this he 
 was bound to do. 
 
 Thus, instead of giving us peculiarly strong reasons 
 for keeping our covenants, he gives us very weak 
 reasons, for it is far from being self-evident that we 
 can never be gainers by a breach of the laws. The 
 absurdity of basing an absolute and indefeasible duty 
 of obedience to positive law on our duty of self-pre- 
 servation, comes out strongly in a passage to which we 
 must in a moment refer ; but at first Hobbes takes 
 care not to depart too widely from common sense. 
 In several passages he speaks of some of our " natural 
 rights " as inalienable, and in one (to Filmer's disgust) 
 he seems to open a wide door for disobedience, by 
 justifying it in cases where obedience would defeat the 
 end for which our rights are aliened, namely, "the 
 security of a man's person in his life, and in the means 
 of so preserving life as not to be weary of it^" But 
 this is exceptional, and on the whole Hobbes' doctrine 
 
 ' Hobbes' English Works, vol. in. 119. (This, I think, is intro- 
 duced for the first time in the Leviathan, the parallel passages being 
 II. 17, and IV. 88.) ^ iii- 120. 
 
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30 Political Philosophy in England 
 
 appears to be that a man ought always to obey the 
 law, but that if he have broken the law, he cannot be 
 expected to submit without resistance to the punish- 
 ment'. In the Behemoth he decides that a son ought 
 to kill his own father if commanded by law to do sol 
 But even the liberty of resisting punishment is with- 
 drawn in the development of his system. In the 
 religious portions of his political treatises (which may 
 I think be appealed to, as I see no sufficient reason 
 for believing, with some of his critics, that Hobbes' 
 professions of religion are hypocritical) he decides that 
 a Christian prince, that is, a prince who believes the 
 fundamental article of Christianity, that Jesus is the 
 Christ ^ is supreme in all matters spiritual, as well as 
 temporal. An infidel prince however is to be obeyed 
 only in temporal matters, not in matters relating to 
 Divine worship. " But what ? Must we resist princes 
 when we cannot obey them ? Truly, no ; for this is 
 contrary to our civil covenant. What must we do 
 then ? Go to Christ by martyrdom ^" 
 
 I quote this firstly in order to show that Hobbes 
 is not consistent in teaching that we may not disobey 
 law, but may resist punishment, for here the doctrine 
 is exactly reversed, we are to disobey and submit to 
 punishment ; secondly, because we seem here to have 
 reached a reductio ad absurdum of Hobbism, We are 
 not to resist when the infidel prince would make 
 martyrs of us. Why ? Because to resist would be 
 "contrary to our civil covenants." But why should 
 
 1 Hobbes' English Works, vol. ii. 25, 26. ^ vi. 227. 
 
 = II. 306, 307, III. 590, IV. 179. 
 
 ^ II. 314-316, III. 600-602, IV. 186-188. 
 
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Liberty 31 
 
 we keep our civil covenants ? Because we ought to 
 preserve our lives so as not to be weary of them. 
 Thus the desire of self-preservation counsels us to 
 submit to martyrdom. This shews how difficult it is 
 to render the conventional theory conservative. 
 
 Hobbes added to the difficulties which lay in his 
 way by maintaining a peculiar psychology, which he 
 has tersely summed up thus, "Now what seems good 
 is pleasant, and relates either to the senses or to the 
 mind. But all the mind's pleasure is glory (or to have 
 a good opinion of one's self), or refers to glory in the 
 end ; the rest are sensual or conducing to sensuality'." 
 He greatly exaggerates the force of emulation. Man, 
 according to him, "can relish nothing but what is 
 eminent." He leaves the social desires out of con- 
 sideration. He did not, as James Mill thinks, mean 
 merely that all our desires once were purely self- 
 regarding, but have become social by a process of 
 " mental chemistry " such as Hartley and his school 
 imagined; no, accordmg to Hobbes, our desires always 
 continue to be self-regarding. Thus the whole weight 
 of our duty of keeping our covenants is thrown on 
 reason, that is, the cool settled desire of self-preserva- 
 tion. Man is not naturally a social animal, his joy 
 consists in glory, in comparing himself with other men, 
 and thus he has no social instincts leading him to 'the 
 civil state, he is only brought to it by a perception that 
 otherwise his life will be " nasty, brutish, short." 
 
 I am inclined to think (though there is great risk 
 of such speculations being wrong) that Hobbes was led 
 to exaggerate his account of man's naturally unsocial 
 1 Hobbes' English Works, vol. n. 5, 
 
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32 Political Philosophy in England 
 
 character by a desire to bring " the state of nature " 
 into discredit. The "state of nature" was the state in 
 which God had created man, it was an ideal state to 
 which civil society should be made to conform. Hobbes 
 thought that there should be no ideal to which political 
 reformers could appeal when preaching disobedience 
 and anarchy. So he pronounced that the state of 
 nature is a state of war. This scandalized Clarendon 
 and other orthodox thinkers, it was calling "nasty" 
 and "brutish" what God had called "very good"; but 
 if we examine the theory calmly it does not seem very 
 objectionable. We have no sooner heard that man is 
 naturally in a state of war than we hear of a faculty 
 called reason, which prompts man to seek peace, and 
 we are told that this faculty is just as natural as any 
 other faculty. So the whole theory amounts but to 
 this. If men were irrational, they would quarrel and 
 fight and never form civil states, but by nature they 
 are rational, and reason counsels them to seek peace. 
 In fact we have here, as Hume says, only a decom- 
 position of forces. " Human nature being composed 
 of two principal parts, which are requisite in all its 
 actions, the affections and understanding, it is certain 
 that the blind motions of the former, without the 
 direction of the latter, incapacitate men for society ; 
 and" it may be allowed to consider separately the effects 
 that result from the separate operations of these two 
 component parts of the mind\" Hobbes really only 
 performs what Hume thinks "may be allowed.^' But 
 he lays great stress on the " preposterous conclusions " 
 which, according to I ago, would result "if the balance 
 ^ Treatise, etc., in. ii. 2. 
 
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Liberty 33 
 
 of our lives had not one scale of reason to poise 
 another of sensuality," and calls the state of men, when 
 deprived of their natural faculty of reason, the " state 
 of nature," because he wishes to discredit one of the 
 "sacramental phrases" of the reforming party, and 
 thus strike a blow at anti-nomianism and anarchy. 
 
 Hitherto we have spoken of Hobbes as an apologist 
 for de facto governments, and as such he ought to be 
 considered. Though the Behemoth is a justification of 
 the Stuarts, he ends, it by saying that the sovereignty 
 had passed by a circular motion from Charles I. to 
 the Long Parliament, thence to the Rump, thence to 
 Cromwell, thence back again to the Long Parliament, 
 thence to Charles IL So the Rump and Cromwell 
 had really been sovereigns, and the covenants of the 
 nation must, during their rule, have been applicable to 
 them. There appears to me insufficient evidence for 
 saying that Hobbes changed his opinions, he steadily 
 refused to allow of any title to rule save the title of a 
 de facto government. He does not enter at length 
 into the nice question of when a de facto sovereignty 
 ceases, but, apart from a de facto, he knows of no 
 de jure sovereign. The subjects, we learn, cannot get 
 rid of the sovereign by agreement among themselves, 
 for the sovereign has rights under the social covenant\ 
 In the de Cive we learn that the subjects are free if 
 the land be conquered, if the sovereign abdicate, or if 
 the succession faiP. In the Leviathan this doctrine is 
 extended, and the subjects are made free when the 
 king can no longer protect them*. The 20th law of 
 nature, added in a postscript to the other nineteen, makes 
 ' English Works ii. 91, 92. ^ ibid. 11. 107. ^ ibid. 111. 208. 
 M. 3 
 
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34 Political Philosophy in England 
 
 him who protects the subjects sovereign^ ; and this is 
 what Clarendon called " a sly address " to Cromwell. 
 
 It should not however be forgotten that Hobbes 
 does try to prove that a limited monarchy is an 
 absurdity, a contradiction in terms, and in the Behe- 
 moth and the Dialogue on the Laws does try to prove 
 that Charles I. was an absolute monarch; and "an 
 absolute monarch " with Hobbes means a good deal. 
 Such an one is subject to no laws, and to no positive 
 morality. 
 
 Charles was king. The king of England is an 
 absolute monarch : he cannot forfeit one jot of the 
 sovereign power. To attempt to limit his authority 
 was not only a crime, but a sin ; it was the sin of 
 rebellion, which sums up in itself all sins, and excludes 
 the sinner from salvation. All of this is to be found 
 in Hobbes' writings ; but, says Austin, to call this an 
 apology for tyranny is "rant." 
 
 Hobbes tried to stop the natural course of the 
 conventional theory, but with ill success ; it was too 
 strong for him, and swept on towards modern demo- 
 cracy. We have seen this theory in the works of 
 Hooker, M,ilton, and Sydney, trying to live at peace 
 with the theory that some men are worthier to rule 
 than others, and that detur digniori is the voice of 
 reason. As long as this was the case the conventional 
 theory could never become constructive ; it was at 
 best an engine for destroying the claims of hereditary 
 monarchy. We must have some principle which shall 
 decide whose consent it is that we shall require ; and 
 this Locke provides. All men, he says, are " creatures 
 
 ^ English Works iii. 703. 
 
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Liberty 35 
 
 of the same species and rank, promiscuously born to 
 all the same advantages of nature, and the use of the 
 same faculties," and therefore they ought to be "equal 
 one amongst another, without subordination or sub- 
 jection, unless the Lord and Master of them all should 
 by any manifest declaration of His will, set one above 
 another'." Of the truth of the assertion that all men 
 are born with the same faculties, and of the legitimacy 
 of the conclusion that therefore there is by nature no 
 subordination or subjection between them, I must 
 again speak. Here let us refer to the way in which 
 Locke obtains his ethical first principles, the principle, 
 for instance, that those to whom God has given equal 
 faculties are by Him intended to be free from all. 
 subjection, save that to which they have consented. 
 A short statement of Locke's ethical opinions will not 
 be out of place, as it will shew the way in which the 
 first great apostle of the Rights of Man obtained the 
 premises of his politics. 
 
 Things are called good and evil only in reference 
 to pleasure and pain I What is apt to produce pleasure 
 in us we call good, for no other reason than because it 
 is apt to produce pleasure'. Moral good is the con- 
 formity of our voluntary actions to some law whereby 
 good is drawn on us by the will of the law-giver'. 
 The only true touchstone of rectitude is the law of 
 God, whereby He directs us to what is best : this law 
 bearing sanctions not only in a future life, but in this 
 life also. This law we discover by the light of nature 
 and by revelation'. Apart from revelation, it is reason 
 
 ^ On Govt. II, 4, ^ Hum. Under, ii. xx. 2. ' 11. xxi. 42. 
 
 * 11 xxviii. 5. ' II. xxviii. 8-11. 
 
 3—2 
 
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36 Political Philosophy in England 
 
 which discovers this law ; in fact, reason is the law of 
 nature\ The laws of God can be deduced with demon- 
 strative certainty from our idea of a Supreme Being, 
 infinite in power, goodness, and wisdom, on whom we 
 depend, and the idea of ourselves as understanding, 
 rational beings. Our knowledge of the Supreme Being 
 is derived from our intuitive knowledge of our own 
 existence, and our knowledge that there must be some 
 eternal cause of our existence, power, and knowledge ^ 
 Of the ethical propositions which can be thus deduced 
 with demonstrative certainty, he gives two examples — 
 "Where there is no property there is no injustice," 
 and "No government allows absolute liberty^" (Very 
 true, but very useless.) It requires study and reasoning 
 to discover this divine law, but it is easily intelligible 
 and plain to all, for men are furnished with the same 
 faculties". The sum of this is : Men ought to obey the 
 laws of God, deduced by reason from the knowledge 
 we have of God and of ourselves ; such obedience 
 being good because it brings us pleasure. But here is 
 a difficulty. Such obedience may be good, but how 
 are we to say that the laws or their Maker are good ? 
 Locke calls God good, though he does not, when 
 formally proving the existence of a Supreme Being, 
 prove that goodness is one of His attributes. He 
 should shew that these laws are themselves fitted to 
 secure the pleasure of mankind, or how can he, with his 
 definition of goodness, call them or their Maker good ? 
 It is certain, however, that Locke regarded our duties 
 as set us by the laws of God, which can be deduced by 
 
 ' On Govt. n. 6. ^ Hum. Under, iv. x. 
 
 " IV. iii. 18. ''On Govt. 11. 4, 6, 12. 
 
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Liberty 3-7 
 
 reason, and, when laying down a maxim as such a law, 
 he does not make a calculation of consequences, but 
 appeals to the law as discoverable from our knowledge 
 of God. And indeed he held that a man who does 
 not believe in a God cannot know of any moral duties', 
 and thus morality is merged in natural religion. 
 
 I believe however that Locke would not have 
 objected to saying that the laws of God direct us to 
 those actions which most conduce to the greatest 
 happiness of the greatest number, and it is probably 
 to this fact that he would have appealed if asked to 
 shew that God is good. But he attempts to transcend 
 utilitarianism by deducing moral laws from our idea of 
 God. In short, his poHtics are as " meta-political " 
 (to use Coleridge's happy phrase) of those of Kant 
 himself. 
 
 What therefore Locke has to do is to deduce the 
 right of every man to be under no government to 
 which he has not consented, from the ideas of God as 
 infinitely wise, good, and powerful, and of ourselves as 
 understanding, rational creatures. He proceeds to 
 shew that men being the workmanship of God, and 
 being His property whose workmanship they are, have 
 no right to destroy themselves or others. They must 
 preserve themselves and not quit their station wilfully, 
 and, when their own preservation comes not into com- 
 petition, they must preserve the liberty, health, limbs, 
 and goods of others". We have however a right to 
 punish offenders ; we may retribute to them what is 
 proportionate to their transgressions, which is so much 
 as niay serve for reparation and restraint^ But what 
 ' First Letter on Toleration. ^ On Govt. n. 6. * ii. 8. 
 
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38 Political Philosophy in England 
 
 are the offences which we may punish ? Apparently 
 any breaches of the laws of nature, the particulars of 
 which laws it would, Locke thinks, be beside his pur- 
 pose to enter into\ The highest crime of which a man 
 can be guilty is the attempt to get another man into 
 his absolute power, for it may reasonably be concluded 
 that he who would get me into his power without my 
 consent would destroy me if he had a fancy to it^ 
 Hence we ought to be free from all absolute power to 
 which we have not given our consent '. 
 
 Such is the argument by which Locke would deduce 
 the conventional theory from our ideas of God and of 
 ourselves. We are God's property, not our own, there- 
 fore we may not destroy ourselves or each other ; he 
 who attempts to assume the sovereignty without the 
 consent of the ruled, must be supposed to be intent on 
 destroying them, and therefore commits the greatest of 
 all sins against the law of nature. 
 
 Government therefore ought to rest upon the con- 
 sent of the governed, and the consent of every man is 
 equally valuable. But what are we to consent to ? It 
 is of the greatest importance that we should have an 
 exact answer. 
 
 Unfortunately, Locke here assumes the place of 
 the historian, and begins to tell us what men have 
 done ; he allows fictitious history to intrude upon ethics. 
 But we must take the doctrine as we find it. We are 
 told that when any number of men have by the consent 
 of every individual made a community, they have 
 thereby made the community one body with power to 
 act as one body, which is only by the will and deter- 
 ^ Oil Govt. II. 7-12. ^ II. 17-21. * II. 22. 
 
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Liberty 30 
 
 mination of the majority. So when once the state is 
 formed, the whole body is to be concluded by the 
 majority. This assertion of the divine right of majori- 
 ties is most important, and here is the reasoning on 
 which it is based. That which acts any community, 
 being only the consent of the individuals of it, and it 
 being necessary for that which is one body to move 
 one way, it is necessary for that which is one body to 
 move that way whither the great force carries it, which 
 is the consent of the majority : or else it is impossible 
 to act or continue one body, one community, which 
 the consent of every individual united into it agreed 
 that it should, and so every one is bound by that 
 consent to be concluded by the majority'. At first this 
 looks like a piece of Social Mechanics, this talk about 
 necessity seems to imply that we are to take a fatalist 
 view of the matter, and say that a body politic will 
 always move as the majority of citizens would have it 
 move. Even here the physical analogy breaks down ; 
 a body acted on by two unequal opposite forces does 
 not move as if the lesser force did not exist. This 
 however is not what Locke meant, he is not really 
 speaking of what must happen, but of what ought to 
 happen, and doubtless it is his opinion that men's 
 faculties are equal, which makes him see in the principle 
 that a majority can bind a minority the one possible 
 principle of just government. 
 
 But how about after generations .-" Does the con- 
 sent of the fathers bind the children to be concluded 
 by the majority ? Burke tries to shew that the original 
 contract binds posterity, but Locke resolutely answers 
 ^ On Govt. II. 95, 96. 
 
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40 Political Philosophy in England 
 
 that the son is altogether as free as the father. At 
 this point however in Locke's argument, there is a 
 little vacillation. At first we are told that every citizen 
 enters into the covenant when he comes of age. But, 
 it is argued, no government can permit any part of its 
 dominions to be enjoyed by those who do not belong 
 to the community. The original contract is thus sup- 
 posed "to run with the land," to use a lawyer's phrase. 
 Every person who has possession or enjoyment of any 
 land within the dominions of the government has given 
 his consent to its laws. So far the idea is that, the 
 land being bound by the covenant, every one who 
 has possession or enjoyment of the land gives a tacit 
 consent to the government^ " by becoming a member of 
 the society^." But in a few lines all is changed. These 
 tacit covenantors are not members of the society, their 
 obligation begins and ends with the enjoyment of 
 the land", and we are introduced to a fresh set of 
 covenantors who, by actual agreement and express 
 declaration, have given their consent to be of the 
 commonwealth, and are perpetually and indispensably 
 obliged to be and remain unalterably subjects to it : 
 and nothing can make a man a member of the common- 
 wealth but his actually entering into it, by positive 
 engagement and express promise and compact*. Thus 
 having been told that the son becomes a member of 
 the society by merely enjoying the possessions of his 
 father, we now learn that he is not a member of the 
 community unless he has entered into it by express 
 promise and compact. 
 
 I have dwelt at some length on this point because 
 
 ^ On Govt.u. 116-119. ^ II. 117. * II. 120. * II. 121. 
 
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Liberty 41 
 
 I would shew the exact steps by which the conventional 
 theory leads us to democracy. If men can bind their 
 posterity, then the conventional theory may be perfectly 
 conservative, but then how are we to say that all men 
 are born free ? If we are prepared to reject natural 
 freedom we have no need of the conventional theory. 
 If we will not do this, we must say with Locke, that 
 the son is born as free as the father. Then Locke 
 finds a momentary resting-place in the notion of a 
 covenant which binds, not posterity, but the land which 
 posterity occupies. But this will not do, for even if 
 our ethics were bounded by Real Property Law we 
 should admit that not all conditions with which a man 
 may try to burden his successors in title are valid. 
 The moralist would go at least as far as the lawyer in 
 abhorring a perpetuity. Locke tells us that the earth 
 has been given to men in common, and shall one 
 generation be able to deprive its successors of the use 
 of it ? So Locke surrenders this doctrine, and seems 
 to think it only necessary as accounting for the way in 
 which alien residents become subject to our laws ; and 
 then he boldly proclaims that nothing can make any 
 man a subject or member of the commonwealth but his 
 actually entering into it, by positive agreement, and 
 express promise and compact. 
 
 One barrier still remains between us and democracy. 
 The majority may institute some legislative body, and 
 surrender certain of the natural rights of the people to 
 this body. It may even give the power to one man\ 
 After this grant of power the legislator or prince may 
 have certain rights. He holds his power under an 
 ' On Govt. II. 132. 
 
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42 Political Philosophy in England 
 
 agreement, and apparently cannot be cashiered as long 
 as he performs his part of the agreement. I take the 
 following words of Dr Hutcheson to be a correct 
 account of the proceedings at the Original Convention, 
 as imagined by Locke : " To constitute a state or 
 civil polity in a regular manner these three deeds are 
 necessary — First, a contract of each one with all that 
 they should unite into one society to be governed by 
 one counsel ; and next, a decree or ordinance of the 
 people concerning the plan of government, and the 
 nomination of governors ; and lastly, another covenant 
 or contract between these governors and the people, 
 binding the rulers to a faithful administration of their 
 trust and the people to obedience'." Here is some 
 little defence against democracy, for by this latter 
 covenant the people are obliged to obedience as long 
 as the rulers do not break their half of the engagement, 
 and it is admitted that the power may have been 
 granted to the rulers for ever. Even Hobbes is not 
 excluded. He could still say that all rights have been 
 surrendered for ever, and that the rulers have on their 
 part made no covenant at all. But Locke is not going 
 to permit the revival of such pretensions. We can 
 learn the conditions of the contract between the rulers 
 and the ruled by considering why it was that men left 
 the state of nature for the social state. It was because 
 they wanted — (i) a known and settled law to decide 
 their controversies; (2) known and indifferent judges; 
 (3) power to enforce the law against criminals^ But 
 It is with the intention the better to preserve himself, 
 
 ' Hutcheson's Introduction to Mor. Phil. in. 5. 
 ^ On Govt. II. 124. 
 
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Liberty 43 
 
 his life, liberty, and property, that every man consents 
 to enter the society, and therefore the power of the 
 society ought never to be supposed to extend further 
 than the common good, and is obliged to secure to 
 every man his property {i.e., life, liberty, and estate) 
 by guarding against those defects in the state of nature 
 which induced men to form communities'. Hence it 
 follows that the legislative body instituted by the 
 majority of the community — (i) must govern by estab- 
 lished laws, (2) must design its laws for no other end 
 ultimately but the good {i.e., pleasure) of the people, 
 (3) must not raise taxes without the consent of the 
 people, for it must not take from any one his property 
 without "his own consent, i.e., the consent of the 
 majority^" \ (4) must not delegate its legislative powers 
 But supposing that there is a dispute between the 
 prince and the people as to whether these conditions 
 have been broken (and surely there well may be such 
 a dispute, for men are not apt to agree as to whether 
 a prince's laws are designed for no other end but the 
 good of the people), who is to decide ? " Who shall 
 be judge whether the prince or legislative act contrary 
 to their trust ? To this I reply, the people shall be 
 judge^" 
 
 Thus just when the conventional theory might 
 have been appealed to on the Conservative side, Locke 
 practically abandons it and falls back on Utilitarianism. 
 One of the conditions of their tenure of office is that 
 the rulers shall make laws for no other end ultimately 
 but the good of the people, and if the rulers break 
 this condition, they have no further rights under the 
 ' On Govt. II. 123-131. ^ II. 140. * II. 134-141. " II. 240; 
 
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44 Political Philosophy in England 
 
 contract. This is to go nearly as far as Hutcheson, 
 who, though he also admits a contract between rulers 
 and ruled, says outright that if greater and more lasting 
 mischiefs are likely to arise from the continuance of a 
 government than from a violent effort to change it, 
 such an effort is both lawful and honourable. Rousseau, 
 we shall see, manages the matter more cleverly, for he 
 admits of no contract between the rulers and the 
 ruled. But at any rate, the barrier between Locke 
 and democracy is a very weak one. 
 
 Though Locke comes with a system of rights to 
 liberty and equality deduced from the very idea of 
 God, there runs throughout his politics a tendency to 
 admit that the Utilitarian measure of right and wrong 
 is the true one. " The end of government is the 
 good of mankind\" " The public good is the rule and 
 measure of all law-making^" And good is pleasure. 
 Locke resembles Hobbes^ in this respect. He requires 
 his sovereign to be a utilitarian, but holds that we can 
 decide who ought to be sovereign by some surer and 
 readier method than by considering who will make the 
 best laws. Now it is by no means evident that " the 
 end of government " will be attained, or the " measure 
 of all law-making" satisfied, when the governors are 
 appointed by the majority of the people. Thus we 
 may have to say that the only right government (that 
 is, one established by a majority of the people) is not 
 the one best suited to attain the end for which all 
 governments are instituted. Of course, the laws of 
 morality may not be harmonious among themselves, 
 but this is a conclusion which we can scarcely come to, 
 ^ On Govt. II. 229. ^ First Letter on Toleration. ' Op. Cit. 111. ^22. 
 
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Liberty 45 
 
 if we look upon these laws as deduced from the idea of 
 a Being infinite in power, goodness, and wisdom. 
 
 Burke has vehemently asserted that the French 
 Libert^ was not the Liberty for which our own Whig 
 patriarchs pleaded'; but Burke would have found it 
 difficult to show that there was any single article in 
 the Declaration of the Rights of Man for which ample 
 authority could not be found in the writings of the most 
 popular of all English philosophers. It is surprising 
 how little Rousseau added to the essential part of the 
 conventional theory as it was delivered to him by 
 Locke. Of course there is a great external difference 
 between the writings of the cautious, candid English- 
 man, and those of the brilliant French romance writer, 
 but the difference is external. In Locke we find a 
 constant desire not to "go beyond his brief," while 
 Rousseau will at all hazard turn out a perfectly neat 
 and logical piece of work ; but Locke had been obliged 
 to proclaim principles which covered not only his 
 own case, but also the case of Rousseau. The chief 
 improvements which Rousseau introduced into the 
 conventional theory must be shortly noticed. 
 
 Locke, we have seen, emphatically asserts that a 
 father cannot alienate the liberty of his children''; 
 Rousseau agrees, " un tel don est contraire aux fins de 
 la nature, et passe les droits de la paternit6^" But 
 Locke holds that the land being bound by the contract, 
 occupation of the land must be taken as evidence of a 
 tacit consent to the government. He however wavers, 
 and requires an express consent in order that a man 
 
 ^ Reflections on tru Revolution, etc. ^ Civ. Govt. n. u6. 
 
 ' Du Contrat Social, i. iv. 
 
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46 Political Philosophy in England 
 
 may become a subject of the State, Rousseau is at 
 one with him. Unanimity is necessary for the contrat 
 social, if any one will not consent he remains outside 
 the State; but, "quand I'Etat est institud le consente- 
 ment est dans la residence ; habiter le territoire c'est se 
 soumettre a la souverainet6'." This doctrine however 
 would allow that tyranny may become rightful by pre- 
 scription, so a very characteristic note is added'': "Ceci 
 doit toujours s'entendre d'un Etat libre ; car d'ailleurs 
 la famille, les biens, le defaut d'asyle, la necessity, la 
 violence, peuvent retenir un habitant dans le pays 
 malgr^ lui, et alors son sejour seul ne suppose plus son 
 consentement au contrat, ou a la violation du contrat." 
 This ingenuity is beyond Locke, who, when speaking 
 of residence as a tacit consent, does not make it applic- 
 able only to the case of a "free" state; but then he 
 elsewhere does what is almost equivalent, for he will 
 not allow that an usurper — one who obtains power by 
 other ways than those which the laws of the community 
 have prescribed — can have any authority until he has 
 obtained the actual consent of the people'. 
 
 But Rousseau's grand improvement on Locke is 
 that he gets rid of the third of Hutcheson's "three 
 deeds " ; he will have no contract between the rulers 
 and the ruled. The first deed, the contract of associa- 
 tion, is the only social contract*. Here Rousseau is at 
 one with Hobbes, who, though for a very different 
 reason, will have no contract between the sovereign 
 and the subjects. Hobbes' account of the proceeding 
 is that the subjects covenant among themselves, the 
 
 ' Cont. Soc. V. ii. ^ ibid. note. 
 
 ' Civ. Govt. II. 198. * Cont. Soc. iv. 16. 
 
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Liberty 47 
 
 sovereign not being a party'. From this we should 
 expect that the sovereign can have no rights under 
 the covenant, and that the covenantors could by mutual 
 agreement annul the contract. But this was not at all 
 what Hobbes wanted, so he imagines, not a contract 
 between rulers and ruled, but a grant to the ruler^ 
 Rousseau does not admit the contract or the grant ; 
 the rulers hold their power not only by, but also during 
 the will of the sovereign people. Now this is a great 
 improvement in the theory : there can be no question 
 as to whether the rulers have kept their part of the 
 engagement. If they be not wanted they may go. 
 After all, however, Locke had gone nearly as far as 
 this, for the rulers may be sent about their business if 
 they make laws for any other end but the good of the 
 people, and Hutcheson had gone quite as far. In fact, 
 with the latter the " third deed " is a mere survival ; it 
 is not useful, and must drop off in time. 
 
 But Rousseau, in his practical application, does go 
 much further towards democracy than Locke did. 
 "Toute loi," he says, "qui le peuple en personne n'a 
 pas ratifi^e est nulle ; ce n'est point une loi. Le 
 peuple Anglais pense ^tre libre ; il se trompe fort, il ne 
 I'est que durant I'election des membres du Parlement ; 
 si-tot qu'ils sont ^lus il est esclave, il n'est rien." How, 
 let us ask, would Locke have answered this ? He 
 would probably have said that undoubtedly the people 
 of England have a God-given right to make their own 
 laws, but that they do not think it expedient to insist 
 on this right : they cannot, however, lose the right by 
 lapse of time ; if they choose to insist on it no one can 
 1 Op. at. III. 161. '- Op. at. II. 91. 
 
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48 Political Philosophy in England 
 
 rightfully object. But though he might make use of 
 an appeal to expediency to stop democracy in practice, 
 he cannot use it to resist the theory that all men have 
 a right which they may enforce if they please, to be 
 under no laws save those to which they have consented. 
 It will be noticed that Locke does not admit that the 
 consent of our representatives is all that we can insist 
 on, for a representative assembly he thinks may (though 
 it probably will not) infringe the natural rights of the 
 people, e.g., by raising taxes without their consent^ 
 
 We have seen how Locke gets over the difficulty 
 of identifying the consent of the majority with the 
 consent of the whole ; we must have agreed to be 
 concluded by the majority because a body politic must 
 move in one way. And when speaking of taxation he 
 says that a man's property may not be taken without 
 "his own consent, i.e., the consent of the majority^' 
 This simple id est is too clumsy for Rousseau : he 
 rises to the occasion, and produces a splendid sophism, 
 which I quote at length, because it shows the difficulty 
 of hiding the weak point of the conventional theory : — 
 
 Mais" on demande comment un homme peut 6tre libre, et force 
 de se conformer a des volontes qui ne sent pas las siennes. Com- 
 ment les opposans sont-ils libres et soumis &. des loix auxquelles ils 
 n'ont pas consenti ? Je reponds que la question est mal posee. Le 
 citoyen consent a toutes les loix, meme a celles qu'on passe malgre 
 lui, et meme a celles qui le punissent quand il ose en violer quel- 
 qu'une. La volontd constante de tous les membres de I'^tat est la 
 volontd g^n^rale ; c'est par elle qu'ils sont citoyens et libres. Quand 
 on propose une loi dans I'assemblde du peuple, ce qu'on leur 
 demande n'est pas precisdment s'ils approuvent la proposition ou 
 s'ils la rejettent; mais si elle est conforme ou non a la volontd 
 
 ' Civ. Govt. II. 138. ^ II. 140. ^ Cont. Soc. v. ii. 
 
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Liberty 49 
 
 gendrale qui est la leur; cbacun en donnarit son suffrage, dit son 
 avis la-dessus, et du calcul des voix se tire la declaration de la 
 volenti generale. Quand done I'avis contraire au mien I'emporte, 
 cela ne preuve autre chose sinon que je m'etois trompe et que ce 
 que j'estimois Stre la volonte generale, ne I'etoit pas. Si mon avis 
 particulier I'eut eniporte, j'aurois fait autre chose que ce que favois 
 voulu, c'est alors que je n'aurois pas eti libre. 
 
 Now when Sydney says that civil liberty is an 
 exemption from all laws to which we have not con- 
 sented, this sounds plausible. Liberty is absence of 
 restraint imposed upon us by other men, and it is 
 plausible to say that we cannot require a liberty from 
 self-imposed restraint. But when Rousseau tells us 
 that a man is not free, though he be under no restraints 
 whatsoever, unless the majority of the people wish that ' 
 he should be under no restraint, we seem to have 
 wandered far out of the right road. The question 
 must force itself upon us, Have we not been pursuing 
 an object which constantly retires before us ? We say 
 that men should be under no laws save those to which 
 they have given their consent ; we say that Hobbes' 
 fictitious consent will not do. Consent must be real — - 
 it must be the consent of all, and, trying to make the 
 consent real and universal, we land ourselves in demo- 
 cracy ; and yet we find that an individual may still 
 be under many restraints to which only an ingenious 
 sophistry can say that he has consented. If what we 
 want be freedom from all restraint not strictly self- 
 imposed, democracy cannot be the ultimate ideal of the 
 conventional theory. 
 
 Even in Rousseau we already see rising an opinion 
 that democracy does not give us any security for that 
 
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50 Political Philosophy in England 
 
 liberty which is valuable, or else what is the meaning 
 of his eulogy on the state of nature, the state in which 
 there were no laws ? But the world could only be 
 convinced that democracy is not necessarily a security 
 for that liberty which men desire, by a great practical 
 experiment. 
 
 We must now return to England, and we notice 
 that during the quiet time which succeeded our Revo- 
 lution the conventional theory is put away, and even 
 falls into discredit. One of the first blows struck at the 
 Original Contract came from Locke's pupil Shaftes- 
 bury, who, looking at the interests of mankind as 
 harmonious, and constantly dwelling on our social 
 instincts, thought that civil societies might well arise 
 and continue without any contract. Ascribing the 
 perception of moral differences to a sense, or taste, 
 rather than to reason, he opposes that tendency of 
 "rational" moralists to resolve all our duties into truth- 
 fulness or fidelity, which tendency had added force to 
 the conventional theory. " The natural knave," he 
 says, " has the same reason to be a civil one, and may 
 dispense with his politic capacity as oft as he sees 
 occasion. 'Tis only his word stands in his way. A 
 man is obliged to keep his word. Why ? Because he 
 has given his word to keep it. Is not this a notable 
 account of the original of moral justice and the rise of 
 civil government and allegiance' ! " Again, Shaftesbury 
 was brought by another road to resist the principles of 
 Locke, for Locke derived our political rights from the 
 idea of God, and this founding of morality on religion 
 Shaftesbury condemned with unusual asperity, it throws 
 ^ Freedom of Wit and Humour, Pt. 3, Sec. i. 
 
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Liberty 51 
 
 " all order and virtue out of the worlds" His aesthetic 
 ethics were much less likely to lead to inalienable, in- 
 defeasible rights than the jural, religious, semi- Puritan 
 ethics of his master. 
 
 But in no book is the reaction against the politics 
 which give Divine rights to kings or to majorities more 
 marked than in the Essay on Man. That reaction 
 must have been at its height when Pope wrote — 
 
 For forms of government let fools contest : 
 Whate'er is best administer'd is best. 
 
 It is the prevailing optimism of the time, the optimism 
 so well illustrated by Shaftesbury and Pope, which 
 led to this contempt of political speculation. Good 
 government appears to these optimists a matter of no 
 great difficulty. After all, governments can do but 
 little towards making men happy or unhappy. Virtue, 
 thinks Pope, alone gives the best happiness ; external 
 goods, the only goods which governments can provide, 
 are comparatively worthless. This optimism I believe 
 to be a great exaggeration. 
 
 That true self-love and social are the same, 
 
 requires more proof than has yet been given of it, and 
 Shaftesbury's attempt to find such a proof is to this 
 day one of the best as well as the most ingenious. 
 But it was high time that the social part of our nature 
 should be brought into prominence, and that we should 
 be shewn to have other motives leading us to civil 
 intercourse, besides our sense of a duty owed to God, 
 and our fear of God, and our fellow-men. 
 
 The harmony of the time was broken by Mande- 
 
 1 Letter to a Student^ vii. 
 
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52 Political Philosophy in England 
 
 ville's assertion that civil society is far from an unmixed 
 good, that crafty politicians have for their own purposes 
 induced men to subject themselves to laws. Thus 
 Mandeville assisted Rousseau in setting up a state in 
 which there is no civil government as an ideal. Men, 
 said Rousseau and Mandeville, have been coerced, or 
 cozened into submitting to law, and the question arises 
 as to whether civil society is not a mistake. It was 
 this line of thought which did much towards proving 
 that the ultimate ideal of those who would free men 
 from all restraints not strictly self-imposed is not to be 
 found in democracy. Burke makes use of arguments 
 with which Mandeville had familiarized the world 
 when he insists against Bolingbroke that all that can 
 be said for natural as against revealed religion, can 
 equally well be said for natural as against civil society. 
 " Shew me an absurdity in religion, and I will under- 
 take to shew you a hundred for one in political laws 
 and institutions'." Now, so well did Burke put the 
 arguments against civil society, that there were some 
 who thought that he spent his whole life in vainly 
 attempting to answer them. Such an one was Godwin, 
 the author of the Political Justice, a book, now chiefly 
 known as the exciting cause of Malthus on Population, 
 but one of the best productions of English democracy. 
 Godwin expressly accepts Burke's reductio ad absurdum 
 of Bolingbroke as a really sound argument^ This, 
 coupled with the doctrine of the perfectibility of man, 
 due to the fact that his voluntary actions spring from 
 opinion and that he is rapidly attaining true opinion, 
 
 ' Burke, Vindication of Natural Society. 
 ^ Political Justice, B, i. 
 
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Liberty 53 
 
 led Godwin to look upon democracy as merely a stage 
 on the road to liberty — a road which will end in the 
 complete abolition of government. I have said this in 
 order to shew how the teaching of Mandeville and 
 Rousseau, that men made an error in letting them- 
 selves be deprived of their natural liberty, affected that 
 stream of thought which, starting from our common- 
 wealthsmen and Locke, at first takes its course towards 
 democracy. 
 
 Before we speak of Hume, who fitly closes that 
 period of our Political Philosophy which lies between 
 the two revolutions, we must refer shortly to the course 
 of ethical speculation in England. During the time 
 of civil strife our political philosophers were too eager 
 to find some answer to the question, "Who ought to 
 rule ? " They tried to supply the place of an answer 
 to the more fundamental question, " What ought a 
 ruler to do ? " by some piece of fictitious history, a 
 direct grant from God to some man and his heirs, or 
 an original contract. But we can scarcely hope to 
 answer this latter question until we have settled what 
 is to be the supreme principle of ethics. For if there 
 be some one supreme principle according to which 
 all men ought always to act (and our philosophers, 
 Bentham no less than those whom he ridicules, always 
 assume that this is the case), then the answer to the 
 fundamental question of ethics, what ought men to do, 
 must be, or include an answer to the fundamental 
 question of politics, how ought men to act in their civil 
 relations. " Le but de I'association, quelque nombreuse 
 quelle soit, ne pent etre essentiellement autre que le 
 but de chacun des ^tres associ^s ; et la loi supreme de 
 
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54 Political Philosophy in England 
 
 I'individu sera la loi supreme de r6tat\" Hence, for the 
 progress of political philosophy, it was necessary that 
 the various possible answers to the question of ethics 
 should be unravelled and distinguished. Whether we 
 get any nearer to a settlement of this question may be 
 doubted, but it is certainly more possible to understand 
 what the exact issue is in these days than it was when 
 Hobbes opened the controversy. Hobbes found the 
 orthodox unprepared. He startled the world by his 
 proclamation of " glory " and " sensuality " as our only 
 motives, and of the will of the sovereign as the only 
 standard of right, and his opponents caught up the 
 first weapons which came to their hand without being 
 nice in their choice. It was retorted that there is a 
 difference between right and wrong, independent of all 
 positive law, a difference pointed to by Revealed and 
 Natural Religion, Reason, Conscience, the interest of 
 mankind, and even enlightened Selfishness, and an 
 indiscriminate use was made of these as a defence 
 for morality, and civil liberty. Political writers like 
 Clarendon, found no difficulty in withstanding Hobbes 
 by appealing to numerous principles, which the moralist 
 sees are not necessarily compatible with each other. 
 
 In the first place it became necessary to exclude 
 revealed religion from the coalition. Both Cumber- 
 land and Clarke keep religious considerations out of 
 sight when setting up their criteria of right action ; for 
 the truth of religion can scarcely be proved without the 
 help of some independent standard of right. Again, 
 the difficulty of calling God good — if His will be the 
 measure of goodness — made the establishment of a 
 ^ Saint-Hilaire, Politique d'Aristote, p. xi. 
 
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Liberty 55 
 
 moral system based on natural religion seem to most 
 men illegitimate ; Locke is here an exception. But a 
 further disruption was necessary. Clarke held that "the 
 good of the universal creation does always coincide 
 with the necessary truth and reason of things," and 
 that, were we in possession of an infinite understanding, 
 all morality might be founded on " considerations of 
 public utility'." But Butler on the one hand, and 
 Hume on the other, made a lasting breach between 
 the morality of conscience and the morality of general 
 utility. 
 
 To Hume fairly belongs the credit, or blame, of 
 being the founder of modern Utilitarianism. It is true 
 that the opposition to Utilitarianism was roused, not 
 so much by his writings as by those of Paley and 
 Bentham. This was likely to be the case, for Hume 
 approached ethics much more in the spirit of Aristotle 
 than in that of a moral preacher. Morality was an 
 existing fact, to be explained if possible. He scarcely 
 draws any distinction between what ought to be and 
 what Tnen think ought to be ; for, as he says, with 
 regard to morals, general opinion is the only standard 
 by which controversy can be decided I It was because 
 he took this view of the matter that his attack on the 
 conventional theory did not produce so great an effect 
 as the attacks of Paley and Bentham. Still there can 
 be no doubt that both Paley and Bentham owed their 
 conception of morality to Hume. And when they 
 make their attempts to shew that the ordinary rules of 
 morality really aim at utility, they can only follow 
 Hume, and follow him at a considerable distance. The 
 1 Evidences, p. 223. ^ Essays, 11. xii. 
 
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56 Political Philosophy in England 
 
 Benthamites have been rather ungrateful to Hume, 
 apparently because he differed from them on the 
 purely psychological question of the origin of the moral 
 sense\ but the fact remains that all that can be called 
 a "proof" of Utilitarianism is due to the suggestions 
 of Hume, and that in this line of argument he has 
 never been surpassed. 
 
 Directly Utilitarianism has fairly separated itself 
 from other moral systems it begins its attack on the 
 original contract. Hutcheson can scarcely be called 
 an Utilitarian in ethics, but when he comes to politics 
 he becomes distinctly Utilitarian. " The end of all 
 civil power is acknowledged by all to be the safety and 
 happiness of the whole body ; any power not naturally 
 conducive to that end is unjust^" He still maintains 
 that there ought to be an original contract with its 
 "three deeds," but this has become a mere fiction. 
 When we turn to Hume's works we can see the gradual 
 process by which he freed himself from the conven- 
 tional theory. We have two editions of his ethical 
 opinions. A change, if not in his views, at least in 
 his language, is discoverable as we pass from the one 
 to the other. In the Treatise on Human Nature, 
 though he expressly states that our political duties do 
 not and cannot depend on promises, he uses words 
 only fitted to express the old theory of the original 
 contract. Thus, when considering the duty of justice, 
 he speaks of "a convention entered into by all the 
 members of the society to bestow stability on the 
 
 ' E.g., James Mill, Fragment on Mackintosh (ed. 1870), p. 264. 
 J. S. Mill, Dissert, and Discuss. (2nd ed.), vol. n. p. 455. 
 ^ Introduction to Moral Philosophy. 
 
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Liberty 57 
 
 possession of external goods," &c. — the old phrases 
 lingering on after their meaning has vanished \ But 
 these expressions are not to be found in the Inquiry 
 concerning the Principles of Morals. He had pub- 
 lished an essay on the original contract^ which puts 
 forward the arguments afterwards used by Paley^ and 
 Bentham* in their most telling form. Hume had not 
 yet made the acquaintance of Rousseau, he only knew 
 of the conventional theory as a piece of Whiggism, 
 for since Locke's time the theory had been asleep in 
 England. But the argument is equally fitted to meet 
 the democratic doctrine, and the conservative imitation 
 of it. From Hume's day we may date the rise of a 
 definite philosophical antagonism to the conventional 
 theory. Such an antagonism had never before existed, 
 for since Filmer and Mackenzie (who can scarcely be 
 called philosophers) had been conquered by Locke 
 and Sydney, the only choice for the politician had been 
 between different forms of the conventional theory. 
 Doubtless there had been many men who had seen 
 through the pretensions of this theory (Shaftesbury 
 had), but they had not provided a substitute, and 
 Utilitarianism is a substitute. 
 
 One more word as to Hume. He proclaimed that 
 politics might be made a science". This was no new 
 assertion, for Hobbes and Locke had gone this length. 
 But Hobbes and Locke thought that geometry should 
 be the model for politics. Neither the one nor the 
 other had shewn the least appreciation of the use of 
 
 ' Treatise, etc., ni. ii. ^ Essays, ii. xii. 
 
 ^ Mor. and Pol. Phil., vi. iii. 
 
 ^ Fragment on Govt., i. xxxvi., and note. ^ Essays, i. iii. 
 
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58 Political Philosophy in England 
 
 history. Like their contemporaries, they looked upon 
 history not as an account of certain general streams of 
 tendency, but as a collection of anecdotes from which 
 apt illustrations of a priori theories might now and 
 then be gleaned. We might describe Hobbes' method, 
 in Mill's language, as the deduction of ethology from 
 psychology, without a verification from history. The 
 seventeenth century revolt against Aristotle is often 
 looked upon as the revolt of induction against deduc- 
 tion. But however true this may be of metaphysics it 
 is wholly untrue of politics. The deductive mind of 
 Hobbes revolted against the cautious induction of 
 Aristotle. Hallam^ notwithstanding, there is no philo- 
 sopher who has shewn so little appreciation of the 
 inductive method as Hobbes^ In Hume we see the 
 first beginnings (if we except the remarkable work of 
 Harrington) of a scientific use of history. Psychology 
 and history provide evidence for a science of politics. 
 We cannot afford to neglect either ; we cannot afford 
 to neglect history with Hobbes, or to plead for the 
 pure Baconian method with Macaulay^ Hume, in his 
 short Essays on Politics, tries to use both kinds of 
 evidence, and, though without any parade of system, 
 follows that method which John Mill has described as 
 the proper one for social and political investigations. 
 
 To return. At last there appears that outcome of 
 the conventional theory, the Declaration of the Rights 
 of Man. It has often been said that there should 
 have been a Declaration of the Duties of Man as well. 
 
 ^ Hist. Lit., vol. ni. ch. iii. 
 
 ^ Hobbes describes his own method, Op. Cit., ni. xi.-xii. 
 
 ^ Utilitarian Theory of Government. 
 
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Liberty 59 
 
 The reply that the one implies the other is obvious, 
 but unsatisfactory. There are many good reasons why 
 a political philosopher should concern himself with 
 duties and not with rights. 
 
 (i) It is certain that the rights of Man are not 
 legal rights. They must be what are called moral 
 rights. But supposing that we can attach any definite 
 meaning to the phrase "moral rights," nothing that we 
 can do will ever deprive the word " rights " of its legal 
 savour. We have seen how the expression " laws of 
 nature" may lead to anarchy, but the word "rights" 
 is far more positive than even the word "laws." 
 
 (2) But if we rigorously exclude the idea of 
 positive legal rights, we have still a whole bundle of 
 ambiguities. An example will shew this. We say 
 that A has a moral right to receive ;^5 from B. We 
 may mean simply that it is B's duty to pay that sum. 
 Or that if A chooses to force B to pay, no one ought 
 to prevent him. Or that other people ought to force 
 B to pay, and this they ought to do either by the force 
 of law, or by the force of public opinion. Let me for 
 a moment invent a term or two. If we merely mean 
 that B ought to pay, then A has a moral claim. If 
 we mean that if A forces B to pay, no one ought to 
 interfere, or that other people ought to force B to pay 
 by the sanction of popular opinion, then A has a moral 
 right. If we mean that third parties ought to oblige 
 B to pay by making some law to that effect, then A 
 has an ideal legal right. This analysis is not complete 
 but must suffice. 
 
 (3) Our moral claims and moral rights depend in 
 some measure on positive law. We say that A has a 
 
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6o Political Philosophy in England 
 
 moral right to ;i^5 from B. We may mean that B 
 ought to pay, and pubHc opinion ought to make him 
 pay, the law of the land being what it is ; or that B 
 ought to pay, and public opinion ought to make him 
 pay, whatever may be the law of the land. 
 
 For all these reasons " rights " should be left to 
 their proper owners, the lawyers. If the rights of man 
 mean anything definite, they can be translated into 
 terms of duty, and it is very advisable that this should 
 be done. Let us take an actual case. Locke and 
 Rousseau would agree in saying that men have a right 
 to be equal. Now this may mean that no one ought 
 to do anything tending to inequality ; or that public 
 opinion ought to prevent anyone from doing anything 
 tending to inequality; or that a law ought to be made 
 to punish those who do anything tending to inequality. 
 Again, it may mean that the first, or the first and 
 second of these propositions are true, law being xvhat 
 it is, or are true whatever law may be. 
 
 This is extremely brief and incomplete, the am- 
 biguities of "moral rights" are not exhausted, they 
 are scarcely exhaustible ; but enough has been said to 
 shew that we should look on a philosophy of rights _ 
 with suspicion. 
 
 We must now consider what were the philosophic 
 weapons which Englishmen had to oppose , to the 
 Rights of Man. It would be unfair to say that Burke 
 used any one weapon, for he used all, and Coleridge is 
 right in saying that he was not very consistent in his 
 use of them. He could be a maintainer of inalienable 
 rights against the calculators, a reckoner of expediency 
 against the preachers of inalienable rights. But Burke 
 
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Liberty 6i 
 
 has, and has justly, the reputation of being a great 
 philosophic statesman ; he shews a desire to get to 
 first principles, and this is the desire of the philosopher. 
 So we may fairly dissect his theories as if they were 
 but the theories of a system-maker. 
 
 Now, throughout his works on the Revolution, the 
 two most successful lines of argument are the religious 
 and the utilitarian. He could easily shew that the 
 revolution was opposed to Christianity. He could 
 shew that a great deal of unhappiness resulted from 
 the subversion of the old social order. But he tried to 
 do more than this. Like Hobbes he tried to wrest 
 the conventional theory out of his adversaries' hands. 
 In his Reflections on the Revolution, he takes pains to 
 prove, as against Dr Price, that the rights of choosing 
 our governors, and of cashiering them for misconduct, 
 were not claimed by this nation in 1688. Again, in 
 the Appeal to the old Whigs, he would shew that the 
 party to which he still professed to belong was not 
 committed to the principles of 1789. To a certain 
 extent he was successful. He could shew that Somers 
 in drawing the Bill of Rights was careful to base the 
 English Revolution on necessity. He could say that 
 he did not wish to be a better Whig than Somers, 
 who held that the revolt against James could only be 
 justified by a privilegium, and privilegiwm non transit 
 in exemplum. He could shew that the managers of 
 Sacheverell's trial had been at pains to accuse the 
 Doctor on special, not on general grounds ; it was not 
 Revolution, but the Revolution of 1688 which was 
 justifiable. But then this proves litde. Somers had 
 to scrape together a majority, he wanted (as Macaulay 
 
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62 Political Philosophy in England 
 
 says) not to frame a valid syllogism, but to secure 200 
 votes by his major and 200 more by his conclusion^ 
 That James had broken the original contract, that he 
 had abdicated, that he had left the country, were all 
 put forward as reasons for calling in William. Besides, 
 as Mackintosh shews^ Somers and Maynard, when 
 pressed by the Tory Lords, admitted that William was 
 an elected king. Nor was it likely that Walpole and 
 Jekyl would argue for sweeping principles when all 
 they wanted was a conviction. More than this is 
 required if Burke would convince us of the thorough 
 novelty of the French doctrines. We may not wish 
 to be better Whig statesmen than Somers, we cannot 
 hope to be more truly Whig philosophers than Somers' 
 friend Locke. Coleridge was far more right than 
 Burke, he knew that the French doctrines of liberty 
 and equality were of no sudden growth. Even Cole- 
 ridge does not trace these doctrines to their source. 
 Coleridge's friend Sydney had gone nearly as far as 
 Coleridge's enemy Locke. Locke did not invent many 
 new political doctrines, his materials were ready to 
 hand ; he did but define them more sharply, systematize 
 them more accurately, and reject all that was incon- 
 sistent with them. Burke is really much hampered by 
 this notion that he is attacking principles of mushroom 
 growth, the fancies of a few atheistic "garreteers"; 
 this prevents his striking at the real root of the 
 doctrines he hated. He will not break loose from the 
 original contract. Like Hobbes, he will try to shew 
 that we have surrendered some parts of our natural 
 liberty once for all. Only he will find a historic 
 ^ Hist. Engl. ^ Vindicia Gallica. 
 
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Liberty 63 
 
 support for this theory. The original contract was 
 confirmed at the Revolution, and was reconfirmed by 
 the Acts of Settlement. And here is a real fact to 
 rest upon, Parliament did profess to bind themselves 
 their heirs and posterities for ever, therefore we are 
 for ever bound \ 
 
 Hume had answered this argument some thirty 
 years in advance : " Let not the establishment of the 
 Revolution deceive us.... It was only the majority of 
 seven hundred who determined that change for near 
 ten millions. I doubt not, indeed, but the bulk of 
 these ten millions acquiesced willingly in the deter- 
 mination, but was the matter left in the least to their 
 choice^ ? " Burke, of course, would reply that the 
 majority of seven hundred was constitutionally com- 
 petent to bind the rest. But how came this about ? 
 Why were they constitutionally competent to do this ? 
 The only answer that the conventional theory can 
 supply is, that they were so under the terms of some 
 older compact. So at last we get back to the original 
 contract, for obviously no subsequent ratification which 
 is only binding because made under the terms of that 
 contract can add any force to our original obligation. 
 
 So Burke must hold that previous to any social 
 contract the father can bind the son, or else the original 
 contract and all proceedings founded thereon are not 
 obligatory on us. Burke said that he was a Whig ; but 
 here he is at issue with the great apostle of Whiggism, 
 who states with emphasis that the father cannot bind 
 the son. Now Hobbes, in trying to make the con- 
 ventional theory Conservative artfully slurs over this 
 ^ Reflections, etc. ^ Essays, ii. xii. 
 
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64 Political Philosophy in England 
 
 point, managing to speak as if the covenant had been 
 made once for all, and at the same time as if it was 
 made by each successive generation. But Burke dis- 
 tinctly holds that the father can bind the son, thinking 
 however that this is the result of the original contract, 
 which, as I say, it cannot be. The power of binding 
 posterity must be independent of the dontract, or else 
 the contract itself has no force. 
 
 We must now face this difficulty : " Can a father 
 bind his posterity by his contracts ? " Burke and 
 Dr Whewell say " Yes," Locke and the Utilitarians 
 say " No." Let us see what popular opinion says. 
 That a father can bind his children to the full extent 
 of what they receive from him by bequest or inheritance 
 is a principle of law which has generally, though not 
 always, the support of positive morality. But that a 
 father can bind his children beyond this extent could 
 never be made law. A covenants to build a school, 
 and, his children being otherwise provided for, be- 
 queaths all his property to a hospital, leaving his 
 covenant unfulfilled. Popular opinion would sanction 
 a law obliging the hospital trustees to build the school, 
 but it would certainly not sanction a law obliging the 
 children to build the school, nor would it consider it 
 morally obligatory on them to do so, even if the 
 hospital trustees evaded their obligation. Common 
 morality does not require the son to keep his father's 
 covenants qua son, but qua heir, devisee, or legatee. 
 And it will be noticed that in Dr Whewell's argument 
 against Paley the cases of hereditary obligation chosen 
 are cases in which the ancestor's property has passed 
 to his descendants. So if popular opinion allow the 
 
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Liberty 65 
 
 force of these lasting covenants, it is only when they 
 " run with " the possession of property. This is the 
 straw at which Locke catches, just before he makes 
 up his mind to require an express consent from every 
 citizen. But what says the English law ? Any number 
 of lives in being twenty-one years and a few months, 
 that is the limit to your power over real property. 
 But it may be said that this is the outcome of the 
 contract, and is not prior thereto. But will popular 
 morality go further than the English law ? Certainly 
 not at present ; if the length of time for which settle- 
 ments are valid is altered, it will not be lengthened. 
 For centuries the law has abhorred a perpetuity. And 
 why .? Because it is "contrary to public policy." Are 
 we then to believe that it is not contrary to public 
 policy that we should be bound by a contract made by 
 our ancestors when they first left that state of nature 
 which they probably were never in ? I must repeat 
 that any subsequent proceeding of those who, under 
 the original contract had power to settle the govern- 
 ment of this country, cannot be binding on us, unless 
 the contract under which they held the power could 
 be binding on us. 
 
 Paine perhaps exaggerates when he says, " There 
 never did, there never will, and there never can exist 
 a Parliament, or any description of men, or any 
 generation of men, in any country, possessed of the 
 right or the power of binding posterity 'to the end 
 of time.'... and therefore all such clauses, acts, or 
 declarations by which the makers attempt to do 
 what they have neither the right nor the power to 
 do, nor the power to execute, are themselves null 
 
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66 Political Philosophy in England 
 
 and void\" We should probably add these words — 
 " if they do not conduce to the good, the happiness, or 
 the morality of the nation." Such clauses are rather 
 "voidable" than "void." But Paine is far nearer 
 common sense than Burke is ; those "primary morals," 
 "untaught feehngs unvitiated by pedantry," to which 
 Burke appeals are quite against him. No man really 
 conceives that his duty to obey the Queen or the laws 
 depends even in the least degree on the fact that some 
 ancestor of his may possibly have promised that he 
 should do so. 
 
 But Burke himself was not satisfied with this, and 
 falls back into a sort of scepticism. To this he had 
 always been prone. In his first work we see its germ 
 in a distrust of human reason, which can easily " make 
 the wisdom and power of God in his creation appear 
 to many no better than foolishness^" This germ 
 developes, until we find him railing against philosophy, 
 appealing to "prejudices cherished all the more because 
 they are prejudices," describing the heart of the meta- 
 physician as pure, unmixed, defecated, dephlegmated 
 eviP. But this strain of language, this assertion that 
 in morals and politics, reason should yield to prejudice, 
 is not natural to Burke. When he describes his 
 own reforms, we do not hear that they were dictated 
 by untaught feeling. No, "I have," he says, "ever 
 abhorred... all the operations of opinion, fancy, inclina- 
 tion, and will in the affairs of government, where only 
 a sovereign reason, paramount to all forms of legisla- 
 tion, should dictate^" The passage from which this 
 
 ' Rights of Man. " Vindication, etc. 
 
 ^ Letter to a Noble Lord. ^ Ibid. 
 
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Liberty 67 
 
 is quoted was written near the close of his life, it 
 shews Burke still proud of having been a philosophic 
 reformer, still proud that great and learned economists 
 (probably including Adam Smith) had communicated 
 to him upon some points of "their immortal works," 
 works not dictated by " cherished prejudices." 
 
 But Burke was like Reid, he thought that he could 
 play the plain man among philosophers, and the philo- 
 sopher among plain men. Why, we must ask, did 
 Burke in arguing against the friends of the Jacobins 
 descend- from principles to prejudices ? Burke has 
 defended himself against the charge of quitting his 
 party, but we do not need this apology to shew us how 
 thorough a Whig he was to the last. No perception 
 of the badness of its results could bring him to abandon 
 the conventional theory. His scepticism is the result ; 
 he will neither give up the old doctrine, that all rightful 
 government must rest on the consent of the ruled, nor 
 accept the only legitimate deduction from this principle. 
 So hiding his meaning in a cloud of words, he in effect 
 repeats over and over again that the doctrine of the 
 rights of man is true in theory but false in practice. 
 Here is a specimen of his philosophy. " The pre- 
 tended rights of these theorists are all extremes ; and 
 in proportion as they are metaphysically true, they are 
 morally and politically false. The rights of men are 
 in a sort of middle, incapable of definition, but not 
 impossible to be discerned. .. .Political reason is a 
 computing principle, adding, subtracting, multiplying, 
 and dividing morally and not metaphysically or mathe- 
 matically true moral denominations \" Some examples 
 ' Reflections, etc. 
 
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68 Political Philosophy in England 
 
 of principles metaphysically true, but morally and 
 politically false, of moral as opposed to mathematical 
 and metaphysical addition, would not have been thrown 
 away. But what this and many other similar passages 
 really mean is, that Burke will not surrender the 
 premises but will reject the conclusion. 
 
 If Burke could but have brought himself to deny 
 that these "metaphysic rights" have any existence, he 
 would have struck the French philosophy the heaviest 
 blow it ever received. But for a really convincing 
 argument against the conventional theory we must 
 turn from Burke to Bentham. Bentham's Anarchical 
 Fallacies'^ is one of his best works. It was written 
 before he, perhaps influenced by James Mill, took that 
 peculiar view of human nature which made him think 
 democracy the only form of government tolerable by 
 the Utilitarian. Bentham hated the claim of "meta- 
 physic rights" no less than Burke did, and bolder 
 than Burke, he denied their existence. He insists on 
 having every word in the French declaration explained. 
 What is a right? Are you using "can," "is," and 
 " ought to be " as synonyms ? Such and such like 
 questions he showers down, questions which Sieyes 
 would have found it difficult to answer. The Third 
 Article of the Declaration was a statement of the con- 
 ventional theory. " The principle of every sovereignty 
 resides essentially in the nation. No body of men, no 
 single individual can exercise authority which does 
 not expressly issue from thence." If this had been 
 presented as a naked proposition, I believe that Locke, 
 Sydney, Milton, and even Hooker would have accepted 
 ^ Bentham's Works, ii. 491. 
 
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Liberty 69 
 
 it. Bentham replies, — The first sentence is perfectly- 
 true, perfectly harmless, where there is no obedience 
 there is no government. When we come to the second 
 clause, we meet "the ambiguous and envenomed 'can." 
 Can not rulers exercise more power than has been 
 expressly committed to them by the nation ? They 
 do. This is not the meaning. It must mean that all 
 laws hitherto made are void. What are you going to 
 do to prevent laws being void ? The whole nation 
 must consent — women, children, all. If women and 
 children are not part of the nation, ^ivhat are they ? 
 Cattle? " Indeed, how can a single soul be excluded 
 when all men, all human creatures, are, and are to be 
 equal in regard to rights, in regard to all such rights, 
 without exception or reserve." There is much more 
 of such argument, obvious perhaps, but tending to 
 shew how unsatisfactory a support the rights of man 
 afford for human happiness. The whole argument 
 might be summed up in the question — If the assertion 
 of these rights of man does not lead to human happi- 
 ness, are you right in asserting them ? If it is not 
 right to assert them, in what sense can they be called 
 rights ? 
 
 Of course, it is in many ways absurd to compare 
 Bentham with Burke, but Bentham supplies just the 
 one thing which always seems wanting in Burke's 
 denunciations of Jacobinism. Burke always feared 
 lest in rooting up revolutionary principles he would 
 root up the principles for which he and his forerunners 
 had contended. 
 
 It may be added that this exposure of Anarchical 
 Fallacies was intended as a pendent to the Book of 
 
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7o Political Philosophy in England 
 
 Fallacies, for if the two be read together it will be 
 seen that there is Httle justice in either of the contra- 
 dictory accusations that have lately been made against 
 Bentham ; (i) that he made law the measure of justice, 
 (2) that in advocating law reforms of secondary im- 
 portance he sacrificed what was of primary importance 
 — respect for law. 
 
 The doctrine of the rights of man returned from 
 France to England with all the latest improvements. 
 We must once more refer to the argument on which it 
 is based. Locke says in effect that God has made all 
 men equal, and that this must be taken as evidence of 
 God's intention that there should be no subordination 
 among them save such as results from consent. Now 
 there is much plausibility in this argument, and it was 
 open to Locke and to Rousseau. But it was scarcely 
 one which some of their followers could use, for the 
 best of reasons, namely, that they did not believe that 
 God had made man at all. Tom Paine could only use 
 it by substituting "nature" for "God," and when this 
 is done the argument ceases to be plausible. If we 
 cease to believe that the original equality of man was 
 produced by a Being infinite in goodness and wisdom, 
 there seems to be no reason for treating men as equals 
 when they have become unequals. 
 
 The defence of the doctrine in Mackintosh's 
 answer to Burke is interesting, because it is a piece of 
 philosophy in the transitional style ; it wavers between 
 Locke and Hume. Mackintosh argues^ that Burke 
 admits the existence of natural equal rights in all men. 
 Some of these we surrender, but as each surrenders an 
 ' VindicicR GalliccE. 
 
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Liberty 71 
 
 equal portion, the remaining portions of all must be 
 equal. All men have an equal right to share in the 
 government. But then he turns round— he must have 
 read Hume, and may have read Bentham's Fragment. 
 He would leave out " prope " in the line, " Ipsa utilitas 
 justi prope mater et sequi." "Justice is expediency," 
 but he adds, " it is expediency speaking by general 
 maxims into which reason has consecrated the ex- 
 perience of mankind. Every general principle of 
 justice is demonstrably expedient, and it is utility alone 
 that confers on us a moral obligation." But though 
 these rights arise from expediency, " the moment the 
 moral edifice is reared its basis is hid from the eye 
 for ever."..." It then becomes the perfection of virtue 
 to consider not whether an action be useful, but 
 whether it be right." He then proceeds to argue in 
 the familiar way that the expedience philosophy does 
 not require us to always calculate the expedience of 
 an action, such calculation being itself inexpedient. 
 
 But this will not do. The rule forbidding calcula- 
 tion is not a rule for the philosopher laying down his 
 middle axioms ; it is a rule for the practical man who 
 has to act in a hurry, and will very likely count himself 
 for more than one. The principle of equality is a 
 principle of justice. " Every principle of justice is 
 demonstrably expedient." Then why not demonstrate 
 the expedience of equality ? Because that men should 
 be equal is a maxim into which reason has consecrated 
 the experience of mankind ? Surely not. We cannot, 
 at all events, take so important a principle upon trust 
 as being that basis of the moral edifice which is hidden 
 from the eye for ever. If Utilitarianism be once 
 
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72 Political Philosophy in England 
 
 allowed to be at the base of the rights of man, Burke's 
 reply would be crushing. Mackintosh, it may be 
 noticed, afterwards surrendered both Utilitarianism 
 and democracy. 
 
 But while the conventional theory was falling into 
 discredit among English philosophers it was proclaimed 
 as a necessary truth by no less a person than Kant. 
 The key-stone of his jurisprudence is the idea of free- 
 dom. Law ought to minimize the external restraints 
 to free action^ We however meet with another 
 notion of freedom, and this a familiar one. " Frei- 
 heit...ist die Befugniss, keinen aiisseren Gesetzen 
 zu gehorchen, als zu denen ich meine Beistimmung 
 habe geben konnen^" Kant was a republican. The 
 republican constitution is, he thinks, "die einzige, 
 welche aus der Idee des urspriinglichen Vertrags 
 hervorgeht auf der alle rechtliche Gesetzgebung eines 
 Volks gegriindet sein muss." But by republicanism he 
 does not mean democracy. " Der Republicanism us ist 
 das Staatsprincip der Absonderung der ausfiihrenden 
 Gewalt (der Regierung) von der gesetzgebenden," 
 
 What exactly Kant meant by saying that all right 
 laws must be grounded on the idea of an Original 
 Contract, and that we are free when under no laws to 
 which we could not have given our consent, must here 
 be left undetermined. But doubtless it was in imita- 
 tion of Kant that Coleridge refused to give up the 
 conventional theory. Coleridge has elaborately ex- 
 posed that " metapolitical " system which attempts to 
 evolve an idea of government out of the pure reason. 
 His attack is directed against Rousseau, but is still 
 ^ Rechtslehre. ^ Entwurf zum ewigen Frieden. 
 
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Liberty 73 
 
 more applicable to Kant. He himself is in politics 
 a Utilitarian, a zealous advocate for deriving the 
 various forms and modes of government from human 
 prudence, and of deeming that just which experience 
 has found to be expedient'. This being so he does 
 what we should expect, he throws over the original 
 contract. But he cannot give up the last fragment of 
 the conventional theory. He introduces an "ever- 
 originating contract " between the subjects and the 
 sovereign. "If there be any difference between a 
 government and a band of robbers, an act of consent 
 must be supposed on the part of the people governed ^" 
 Supposed ! What would Coleridge have said if he 
 had caught Paley affirming that the difference between 
 right and wrong depends upon a supposition ? If we 
 are not going — and Coleridge most certainly was not — 
 to require an actual consent, why ever should we re- 
 quire a supposed consent? Coleridge's sole support 
 for this teaching is an argument addressed to Paley, 
 namely, that whatever Hume might do, a clergyman 
 ought to know that God has authorized the con- 
 ventional theory by his own example : the relation of 
 mankind as a body spiritual to the Saviour at its head 
 is styled a covenant. But this is trifling. Christians 
 believe that God has actually made promises to 
 them, and that they have actually made promises 
 to God. Are we to say that these promises are 
 " supposed " .-" 
 
 Lastly, Dr Whewell espoused the cause of an 
 " ever-originating " contract. He thinks " the social 
 compact... expresses in one phrase the mutual relations 
 ' The Friend, Essay in. ^ Essay ii. 
 
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74 Political Philosophy in England 
 
 of the governors and governed, and of all classes 
 one with another ; the reciprocal character of their 
 rights ; the possibility of the obligations of one party 
 ceasing, in consequence of some act done by another 
 party; the duty of fidelity. and respect to the Constitu- 
 tion ; and the condemnation of those who violate or 
 disregard such duties'." This is true, but the expres- 
 sion "social compact" impHes much more than this, 
 it implies that the duties of the governors and the 
 governed depend upon the existence of some agree- 
 ment ; it implies that had there not been some social 
 agreement, men's duties would not have been what 
 they now are. The social compact is quite unneces- 
 sary to Dr Whewell's system, for he admits a special 
 duty of Order ; and this, not the duty of keeping 
 promises, is the origin of our duty to respect the 
 Constitution. And indeed he expressly says that 
 " Government has rights which no contract among the 
 subjects could give^" This being so, the consent of 
 the subjects not being required in order to make a 
 government rightful, it is surely a mistake to use an 
 expression which was intended to imply, and does still 
 imply, that men have " a right " to be under no govern- 
 ment save one which exists by consent. It is also 
 advisable that anti-Utilitarian moralists should cease to 
 use a phrase which points to a defect in the systems of 
 their predecessors, of which their own systems are not 
 guilty. Hitherto the attacks on the conventional theory 
 have come from professed Utilitarians, while their 
 opponents have only surrendered the doctrine which 
 bases the duty of obedience to civil law on the duty of 
 
 ' Elements, % 849. ^ § 828. 
 
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Liberty 75 
 
 keeping promises, with great reluctance. It would 
 certainly be well that the anti-Utilitarians should clear 
 themselves from the charge of not being able to give 
 any account of our political duties, without falling back 
 upon a principle which either lands us in democracy or 
 has to be turned aside from its natural course by some 
 fiction. It was not unnatural, we repeat, that the 
 conventional theory should have found advocates 
 among moralists who yet were no friends to de- 
 mocracy ; for (i) many moralists have been accustomed 
 to see in the duty of keeping promises the duty most 
 directly and obviously dictated by reason, and (2) those 
 who take the jural view of morality, and include all 
 duties in the general duty of obeying law (i.e., divine 
 or natural law), may easily omit to find a place for 
 the special duty of obeying the law of the land. But 
 Dr Whewell has admitted a special duty of Order^ — 
 a duty of obeying civil law as civil law, and only clings 
 to the social compact because it is an apt phrase. 
 Again, when Dr Whewell says, " the social-compact is 
 the constitution," surely this is misleading. It implies 
 that Englishmen have consented to this constitution. 
 Now this can only be true if their continued residence 
 in this country be taken as evidence of consent, and 
 residence can only be evidence of consent to one part 
 of our law, if it be evidence of consent to all parts. 
 We have only consented to the fundamental laws of 
 the constitution if we have consented to every statute 
 on the books. If our consent bar our repealing the 
 one, it bars our repealing the other ; and yet there 
 are some statutes which we may certainly have a 
 duty to repeal. There cannot be any real danger to 
 
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76 Political Philosophy in England 
 
 the great principles of our Constitution in admitting 
 the fact that they do not depend upon consent. We 
 do not wish to be better Whigs than Lord Macaulay, 
 and he treated the original contract with contempt. 
 There is much of truth in what another Whig, Samuel 
 Johnson (Coleridge's " Cobbett-Burke ") said : " To 
 establish the throne upon a notorious untruth is to 
 establish it upon Mr Milton's Vacuum, where it must 
 fall ten thousand fathoms deep, and know no end of 
 falling'." 
 
 But turning from the conventional theory as it is in 
 Coleridge, a self-convicted fiction, a supposition, to the 
 great principle which Locke took from Hooker, and 
 Rousseau from Locke, we have yet to ask how far the 
 ideal government of those who profess this theory can 
 be called "free." It is certain that the gradual de- 
 velopment of the conventional theory in the direction 
 of democracy was perfectly logical ; that is, that if 
 Hooker would controvert the doctrines of Locke, he 
 must modify some passages in his own writings, notably 
 that passage which I have quoted ; that if Locke would 
 resist Rousseau and Tom Paine, he must contract 
 some of his most essential propositions. Democracy 
 seems a necessary point through which we must pass 
 in attempting to make the consent of the governed 
 more and more of a reality. 
 
 Since the French Revolution, the conventional 
 theory has fallen into some discredit. Looking back 
 now, we may say that the anti-democratic panic which 
 Burke did much to create, was not wholly reasonable, 
 that to it were due some of the revolutionary excesses ; 
 ^ Abrogation of King James by the People of England, etc. 
 
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Liberty 77 
 
 but below this temporary reaction there was a reason- 
 able feeling, that the French Liberie was not a good 
 ideal for state action. " The liberty to which Mr Burke 
 declared himself attached was not French Liberty'," 
 and even when it puts out of sight the horrors and 
 absurdities of Jacobinism, English opinion is at one 
 with Mr Burke. The tyranny of the majority, of 
 which De Tocqueville set the example of speaking, 
 has become an object of dread. But still the conven- 
 tional theory is popular, it crops up when men become 
 excited ; it appeared in 1832 and in 1866, it appears 
 when any clqss desires to acquire a share in the govern- 
 ment. The principal influence with which it has to 
 contend is the influence of certain other ideals of 
 liberty, with which it is maintained to be incompatible 
 — for instance, religious liberty, or commercial liberty. 
 That there is something very plausible in calling 
 a popular government a " free government " is certain. 
 It has been so-called through ages. It is into the 
 reasons for this that we must now enquire. Aristotle 
 says — uird^ecrts [i-h) ovv ttjs SyjfjiOKpaTLKT]<; TroXireias 
 ikevdepta. tovto yap Xdyeiv eicidacrLV, ws iv p.6vr) rrj 
 TToXiTeCa ravTrj )u,€Tej(ovras iXevdepia<s^. He goes on to 
 mention as one of the commonly ascribed attributes of 
 a democracy, to (,7]v ws ^ovKerat tl<s. Milton also, we 
 have seen, would call a government "free" if it was 
 in form "popular," though it might be forced on the 
 nation. And certainly when we speak of a free 
 government we do mean, among other things, that 
 this government has in it a considerable democratic 
 element. 
 
 ^ Appeal from the New Whigs, etc. ^ Pol. vi. ii. 
 
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78 Political Philosophy in England 
 
 Now the type of a pure democratic constitution, 
 such as Rousseau imagined, is one in which no laws are 
 in force save those which a majority of the citizens 
 approve, and in which all those laws which a majority 
 of the citizens would approve are in force. What is it 
 that we can say of the freedom of the citizens under 
 such a government ? We have seen that Rousseau 
 declares that if a citizen voting in a minority did by 
 some accident get a law repealed, he would curtail his 
 freedom, though he might thereby escape some punish- 
 ment which he would otherwise have suffered. But if 
 we construe liberty into simpler terms, if liberty means 
 absence of restraint, how shall we say that the citizen 
 who is always out-voted in the National Assembly is 
 more free than the subject of an absolute monarch ? 
 We are not asking whether democracy be good or bad, 
 but simply whether it be 2. free government. If we 
 come down to history we have many arguments on 
 both sides, but treating the question h priori, should 
 we expect to find in a democracy most freedom from 
 restraint ? to t,r\v <us ^ovkeTa,i rts, is at first sight a 
 fair description of perfect freedom. But to live as the 
 majority wishes, seems to imply that unless we all 
 agree, some of us must be under restraint, must be 
 without liberty. 
 
 We may distinguish two sets of arguments on this 
 point: (i) those which would shew that to be under 
 the rule of the majority is perfect civil freedom ; 
 (2) those which would shew that under a popular 
 government we are not likely to be oppressed by some 
 of the worst forms of restraint, (i) The former class 
 of arguments though they have been very popular, and 
 
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Liberty 79 
 
 may, in times of political strife, be very popular again, 
 seem false. Such an argument is that of Locke, 
 proving that we ought to be under no government 
 except that to which we have consented, and then 
 proving that since men are equal, and since a body 
 cannot move in more ways than one, therefore the 
 body politic must be concluded by the majority. Such 
 a one is that of Rousseau, who sets up the will of the 
 majority as an idol, and calls it la volontd g^ndrale. 
 We do not think ourselves free when we are coerced 
 by the will of the majority, and the esse of liberty is 
 sxxvely percipi. But the strangest of all such arguments 
 is that of James Mill in his Essay on Government, and 
 it is the strangest argument in that strange Essay. 
 " The community,'' he says, "cannot have an interest 
 
 opposite to its interests One community may 
 
 intend the evil of another : never its own. This 
 is an indubitable proposition and one of great im- 
 portance." Hence he concludes that democracy is the 
 one good form of government. But is it not clear that 
 a majority may have an interest opposed to the interest 
 of the minority .'' Such arguments as these are the 
 chief evidence in favour of Comte's theory that there 
 is a metaphysical epoch in the history of human know- 
 ledge. We have the will of all, la volontd gdndrale, 
 the interest of the community, set before us as really 
 existing things, but when we look closer we find that 
 they do but mean the will of a part, the interest of a 
 part. As Kant says, the "all" which makes laws in 
 a democracy is an "all" which is not "alP." In fact 
 we have a specimen of a common logical fallacy. 
 ^ Entwurf z. ewigen Frieden. 
 
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8o Political Philosophy in England 
 
 (2) But beneath all this there was good solid reasoning. 
 Doubtless the conventional theory gained some of its 
 plausibility by these identifications of the majority and 
 the whole, by Locke's simple id est, and by Rousseau's 
 elaborate sophism, — but common sense is not often 
 thus taken in ; it can distinguish between to l,r\v oi? 
 ^ovkerai ti<s and submission to a majority. The con- 
 ventional theory was a great protest against certain 
 forms of restraint, a protest which does not lose its 
 value because the necessity of meeting the " exploded 
 fanatics of slavery^ " on their own ground caused it to 
 assume a form which we cannot but think incorrect. 
 
 It was a protest against arbitrary power, or, more 
 accurately, against the exercise of power in arbitrary 
 ways. By arbitrary I here mean uncertain, incalcu- 
 lable. The exercise of power in ways which cannot 
 be anticipated causes some of the greatest restraints, 
 for restraint is most felt and therefore is greatest when 
 it is least anticipated. We feel ourselves least free 
 when we know that restraints may at any moment be 
 placed on any of our actions, and yet we cannot antici- 
 pate these restraints. Hence along with the conven- 
 tional theory we often find a protest against any forms 
 of governmental restraints except such as result from 
 known general laws. Remembering this, it is not 
 difficult to see how " democratic " and " free " came to 
 be thought synonymous. There has always been great 
 practical danger of government becoming arbitrary. 
 The Stuarts had taught us to identify monarchy and 
 arbitrary government. The Court of Star Chamber, 
 " a court of criminal equity," was constantly before our 
 
 1 Burke. 
 
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Liberty 8i 
 
 commonwealthsmen when they argued for democracy 
 as for a free government. Caprice is the worst vice 
 of which the administration of justice can be guilty ; 
 known general laws, however bad, interfere less with 
 freedom than decisions based on no previously known 
 rule. Where such decisions are frequent, a man can 
 never know what liberty he has, and liberty is only 
 valuable when we know that we have it. An arbitrary 
 government is thus opposed to liberty, and if a de- 
 mocracy is less likely to be arbitrary than other govern- 
 ments, then it has one title to be called free. It was 
 natural to conclude that democracy would in this sense 
 be free. It was seen how easily a monarch could take 
 the first steps towards the exercise of power in an 
 arbitrary way. James and Charles had given us a 
 lesson on this subject. And indeed it may be argued 
 h priori that a democracy is less likely to exercise 
 arbitrary power than is a monarchy. The many minds 
 of many men check each other, one would go this way, 
 another that, so that the steady consistency which is 
 required of those who would exercise power arbitrarily 
 in the face of opposition must be wanting. Strafford's 
 "Thorough," it may be said, is not the motto of 
 popular assemblies. We must not however go too far 
 in this direction ; we have learnt that it is possible for 
 large masses of men to agree upon violent action, and 
 " when they do agree, their unanimity is wonderful," 
 Before democracies had actually been seen it was 
 impossible to estimate the great force of contagious 
 excitement. Here is an indication that the conven- 
 tional theory, even when taken as a protest against 
 arbitrary power, may miss its mark. If we suppose a 
 
 M. 6 
 
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82 Political Philosophy in England 
 
 democracy so perfectly organized that all that the 
 majority wish to be law must be law, and that there 
 can be no law which the majority do not approve, we 
 fail to find in it some of those safeguards against 
 arbitrary, incalculable, interferences with freedom, which 
 are to be found in governments less perfectly demo- 
 cratic. The ideal of democratic government seems to 
 conflict with the ideal of a government which cannot 
 rule in an arbitrary way. Rousseau does try to insist 
 that the popular assembly must do nothing but pass 
 general laws, for la volontS gdndrale cannot descend to 
 particulars, but he has to make one very serious ex- 
 ception to this', and there is no reason in his own 
 system why he should not make more. His general 
 line of reasoning would justify a majority of the citizens 
 in v!\2i}s\xv^ privilegia or ex post facto laws. 
 
 It will be noticed that the bounds which Locke 
 would set to the acts of government are applicable to 
 all governments monarchical or democratic. But 
 here there is some difficulty, for apparently the popular 
 assembly, the majority of which is in case of breach of 
 trust by the rulers the repository of power, is not made 
 subject to these limits. It seems to follow from this 
 that these limits are not to be applied to a pure demo- 
 cratic government, which the National Assembly can, 
 if they please, establish, for in this case the governing 
 body is identical with that assembly whose authority 
 apparently has no bounds. Locke, led astray by his 
 notion that the consent of the majority is in some way 
 the consent of all, scarcely sees that there may be 
 
 ^ The appointment of certain persons as magistrates is a privi- 
 legium. 
 
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Liberty 83 
 
 reasons, why limits should be set to the power of a 
 majority in a democracy. 
 
 The actual limits which Locke would set to govern- 
 mental power have been already mentioned \ Of these, 
 the first limits the .sovereign power by making known 
 general laws the only proper machinery of government. 
 .This is a defence against arbitrary power ; it is a 
 limitation of absolute power, making the exercise of 
 power in arbitrary ways unconstitutional. The third 
 again makes it wrong for the governors to tax the 
 governed without their consent. This also is a pro- 
 vision against arbitrary power. The steps to arbitrary 
 power are not open to a poor king. He must have an 
 army, and, as Harrington says, an army is a beast with 
 a great belly, and must be fedl 
 
 On the whole we may say that the conventional 
 theory as put forward by our early philosophers con- 
 tained beneath its sweeping terms a protest against 
 the exercise of governmental power in arbitrary ways, 
 and a protest against any constitutional theory or 
 " opinion of right " which allows to the ruler absolute 
 power, this hoxng principally objected to because it 
 admits the exercise of arbitrary power. 
 
 But it was only while the conventional theory was 
 but half developed that it was a protest against arbitrary 
 government. In limiting a monarchical or aristocratic 
 
 ' Civ. Gov., 132 — 141. 
 
 ^ Op: at. There seems to me no absurdity in speaking of one 
 form of government as more absolute than another, though Hobbes, 
 Austin, and other analytical jurists think there is. That form Of 
 government is least absolute under which it may be expected that 
 constitutional opinion, "opinion of right" (as Hume calls it), will 
 allow to those who are ordinarily called the rulers the fewest powers. 
 
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84 Political Philosophy in England 
 
 government by teaching that a certain amount of 
 popular consent is required to make government right- 
 ful, we may very possibly prevent such governments 
 having resort to arbitrary measures. It seems more 
 easy to assume that the people have, by some original 
 contract, given to the rulers the power to make " pro- 
 mulgated, standing laws," than that they have given 
 the power of making privilegia or ex post facto laws. 
 But after the conventional theory has gone beyond 
 a certain point, it turns round and sets its face towards 
 absolute power. If the conventional theory leads to 
 an ideally perfect democracy — a state in which all that 
 the majority wishes to be law, and nothing else, is law 
 — then it leads to a form of government under which 
 the arbitrary exercise of power is most certainly 
 possible. Thus, as it progresses, the conventional 
 theory seems to lose its title to be called the doctrine 
 of civil liberty, for it ceases to be a protest against 
 arbitrary forms of restraint. 
 
 Those who took the road to democracy to be the 
 road to freedom mistook temporary means for an ulti- 
 mate end. Undoubtedly, so long as there were Filmers 
 and Heylins in the world — so long even as there was 
 Grotius talking about " patrimonial " kingdoms — some 
 steps towards democracy were steps towards freedom, 
 because they rendered the exercise of power in an 
 arbitrary way a matter of greater difficulty. But if 
 what we are looking for be a state in which the 
 greatest difficulty is placed before those who would 
 exercise arbitrary power, we must turn from the demo- 
 cratic ideal. The introduction of a democratic element 
 into governments has rendered us less subject to the 
 
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Liberty 85 
 
 " inconstant, uncertain, unknown will of others," not 
 because we are now under fewer laws to which we 
 have not given our consent, but because the friction of 
 the governmental machine has been increased, because 
 it has become too unwieldy to be used in a capricious 
 way. The exercise of arbitrary power is least possible, 
 not in a democracy, but in a very complicated form of 
 government. The philosophy of " checks " has become 
 a little old-fashioned, and the modern protest against 
 it was timely. Checks cannot be created e nihilo, they 
 cannot be transplanted to foreign lands — they are only 
 valuable when they are the outcome of opinions of right ; 
 but when all has been said on the other side, the fact 
 remains that we owe our freedom from arbitrary re- 
 straints to that elaborate constitutional theory into 
 which our opinions of right have, through long ages, 
 been crystallizing. 
 
 Here we end our long account of the conven- 
 tional theory of government. We start with Sydney's 
 declaration that the Liberty which ought to be asserted 
 is an exemption of all men from all laws to which they 
 have not given their consent. The theory wants pre- 
 cision ; we must know how men are to be reckoned. 
 Parallel with it there grows up the principle of the 
 equality of all men, and this is the one principle which 
 has been used to make the conventional theory definite. 
 Then we start for democracy. We will make this 
 consent more and more of a reality. We must exclude 
 the consent of the dead ; it is the consent of the living, 
 those under the laws, that we require. Hobbes and 
 Burke try to snatch the weapon from the democrats, 
 but in vain, the opponents of democracy cannot use it. 
 
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86 Political Philosophy in England 
 
 With Dr Whewell it is "a phrase," with Coleridge " a 
 supposition." But after all we are obliged to substitute 
 the majority for all, our "all" is not "all." When we 
 have got ourselves to a perfect ideal democracy, we 
 find no reason for expecting a priori that we shall be 
 under fewer restraints, or fewer governmental restraints, 
 than if we had not insisted so strongly on making the 
 consent of the majority a reality. We can say that a 
 majority approves of every existing law, but we can 
 say nothing more. We find however reason for 
 thinking that the conventional theory in its un- 
 developed state did point towards freedom from a 
 certain class of peculiarly heavy restraints, but that 
 it did so only because it tended to complicate the 
 machinery of government. It must be remembered 
 that we have not been considering whether democracy 
 be good or bad, but simply whether it be a free 
 government, and there is small reason for calling it so. 
 
 It would now, I think, be admitted by most men 
 that we cannot say who ought to make laws for us until 
 we know what sort of laws ought to be made, that the 
 best form of government is that which will best provide 
 for the good (whatever that may mean) of its subjects, 
 and that there are good reasons for thinking that no 
 one form of government is the best semper et ubique. 
 
 But along with the protest against all laws to which 
 the governed have not consented, and the protest 
 against any governmental interference, save by known 
 general laws, we find protests against laws restraining 
 certain classes of action. The two principal classes 
 of action for which freedom from restraint has been 
 claimed, are the religious and the commercial. 
 
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Liberty 87 
 
 /We ought perhaps to notice separately the protests 
 against restrictions on the publication of opinions, but 
 it is round the publication of religious opinions that 
 the battle has always raged. The publication of 
 heterodox opinions has always been considered the 
 extreme case ; thus the arguments for freedom of the 
 press are for the most part included among the argu- 
 ments for religious toleration of which we must now 
 speak. 
 
 Locke is here again the prominent figure, he has 
 collected all the arguments for toleration into one im- 
 posing body. These arguments are so interwoven 
 that they are somewhat difficult to analyze ; what we 
 require to know being the exact arguments for tolera- 
 tion, which we could address to a ruler who did not 
 accept our religion. Some of these arguments are 
 appeals to the religion of the ruler, others we may call 
 non-religious, and of these we must first speak. 
 
 Locke's chief non-religious argument is, that the 
 power committed to the magistrate extends only to 
 the civil interests of the citizens — i.e. life, health, and 
 indolency of body, and the possession of outward 
 things ; he has no power to interfere with religious 
 matters \ Here and elsewhere Locke gives the weight 
 of his name to the common theory which Warburton, 
 following Locke, countenanced, that there are two 
 spheres, the spiritual and the temporal, which can be 
 definitely marked off; that within the latter the magis- 
 trate ought to be supreme, but within the former he 
 should have no power. This however is not satis- 
 
 1 Letter Concerning Toleration. [Locke's Works, 1751, vol. 11., 
 p. 244.] 
 
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88 Political Philosophy in England 
 
 factory. The spheres over which reUgion and law 
 claim to rule really intersect. The only way in 
 which we can draw a line between them is by making 
 " spiritual" mean purely theoretical or speculative, and 
 including all practice and all expression of theory under 
 " temporal " ; but this will not satisfy anyone. The 
 religious man thinks not only that he ought to believe 
 certain doctrines, but also that he ought to say and do 
 certain things. If however "spiritual" include any 
 matter of practice, then we require some criterion 
 which shall mark off spiritual from temporal actions, 
 and this has never been supplied. It will certainly 
 not do to say that actions resulting from religious 
 beliefs are spiritual, all others temporal, for we should 
 certainly enforce the law against polygamy whether 
 the offender were a Mormon or an infidel. Sometimes 
 Locke admits all this\ but the theory of the two spheres, 
 which has since become so popular, occasionally leads 
 him into paradoxes. He decides that a person is not 
 to obey the law when what it enjoins appears unlawful 
 to his conscience. Then he draws a distinction. If 
 the law be bad, but within the proper sphere of the 
 magistrate's power, we must disobey, but submit to 
 punishment. If however the law " be concerning 
 things that lie not within the verge of the magistrate's 
 authority," men are not obliged to submitl Here we 
 have the two spheres, though Locke had acknowledged 
 that moral actions belong to the jurisdiction of both 
 the internal and external forum. Now to take his 
 own case. Suppose that the magistrate, wishing his 
 
 ^ Letter Concerning Toleration. [Locke's Works, 175 1, vol. 11., 
 pp. 259, 261.] '' p. 260. 
 
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Liberty 89 
 
 subjects to embrace a strange religion, does not insist 
 on any change of ritual or liturgy, but on a change of 
 conduct in regard to civil, matters, believing that this 
 change will be for the good of his subjects — e.g. he 
 commands polygamy, but does not propose belief in 
 the Book of Mormon as a test — is this command within 
 the verge of his authority ? It has to do with outward 
 things. Most men would think resistance more ex- 
 cusable if the law commanded polygamy than if it 
 commanded the use of the surplice ; and yet in the 
 former case it would, according to Locke, fall well 
 within the sphere of the magistrate's power, in the 
 latter case it comes under express condemnation as 
 trangressing the proper limit. Popular opinion would 
 not bear Locke out in drawing this line between those 
 bad laws which do not overstep the proper limits of 
 the magistrate's authority, and those which do so by 
 interfering with spiritual matters. When considering 
 whether resistance would be justifiable, we do not so 
 much inquire whether the law interferes with spiritual 
 matters, as how bad the law is. We should justify 
 resistance to some laws which do not, and condemn 
 resistance to some laws which do touch spiritual matters. 
 The next argument is that persecution of religion 
 must be unsuccessful. But allowing to this all its 
 proper force, we can only say that it proves that in 
 order to be successful our persecution must be very 
 thorough ; we must leave milder measures and resort 
 to fire and sword. Supposing however that the ruler, 
 to whom we address our argument, says that his religion 
 justifies him in using all means, even the most stringent, 
 for the coercion and conversion of heretics, what are 
 
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90 Political Philosophy in England 
 
 we to say ? What are we to say if the ruler hold that, 
 whether successful or unsuccessful, he has a religious 
 duty to abstain from tolerating heterodoxy ? There 
 seem three lines of argument open, all of which have 
 been used by our philosophers. 
 
 (i) We may say to the magistrate that his own 
 religion does not really permit persecution ; this is the 
 strongest argument of Milton and Locke; and we may 
 well say that if the magistrate profess any religion 
 which we need consider, this argument is most powerful. 
 At any rate, if the magistrate be a Christian, this argu- 
 ment ought to prevail to prevent his resorting to any- 
 thing worthy of the name of persecution. And now 
 we can argue that if he is really to produce any result, 
 he must have recourse to measures which his religion 
 cannot approve. But Locke pushes the religious 
 argument further. He admits that the public good 
 {i.e. pleasure) is the sole end for government. He 
 also maintains that every man has an immortal soul, 
 capable of eternal happiness and misery, whose happi- 
 ness depends upon his believing and doing those things 
 in this life which are necessary to the obtaining of 
 God's favour, and are prescribed by God to that end, 
 and the observance of these things is the highest 
 obligation that lies upon mankind\ It might therefore 
 be asked why the magistrate is to concern himself only 
 with the temporal good of his subjects, this being so 
 small when put beside their eternal happiness. Why 
 should not the magistrate provide also for the latter ? 
 Locke answers, Because he cannot. Although the 
 
 ^ Letter Concerning Toleration. [Locke's Works, 1751, vol. 11., 
 p. 259.J 
 
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Liberty 91 
 
 magistrate's opinion be sound, and the way that he 
 appoints be truly evangelical ; yet, if I be not thoroughly 
 persuaded thereof in my own mind, there will be no 
 safety for me in following it\ Now this is a distinctly 
 religious doctrine, it asserts that right action and right 
 belief will not profit us in another world, if they be 
 forced upon us. This seems true, but we run into 
 difficulties if we press the doctrine too far. We can 
 scarcely, imagine that any action or belief which is not 
 purely voluntary can, from a religious point of view, 
 be considered meritorious. This would lead us to say 
 that no beliefs which are the result of the force of 
 education or custom can be meritorious ; and yet most 
 men would say that they ought to take some means to 
 spread their religion. This duty may not be deducible 
 from a duty to secure our neighbour's everlasting 
 happiness, which may only be attainable by his own 
 voluntary efforts, and yet it may be a plain duty.: 
 Thus it might be urged, in answer to Locke, that by 
 using force to compel my neighbour to accept true 
 religion, I do not make him more virtuous in the sight 
 of God, but I do fulfil a plain duty. Perhaps the 
 ordinary way of drawing a line is saying that I ought 
 not to make my neighbour a hypocrite, but that, short 
 of this, my religion obliges me to use, all means to 
 convert him. Thus, taking the common view of 
 religion, there seem sufficient reasons why a man, be 
 he a magistrate or not, should refrain from the coarser 
 forms of persecution. Persecution by fire and sword, 
 or by imposing disabilities, converts no one without 
 
 ^ Letter Concerning Toleration. [Locke's Works, 1751, vol. n., 
 P- 253-] 
 
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92 Political Philosophy in England 
 
 making him a hypocrite ; but those more delicate forms 
 of compulsion which consist in giving advantages by 
 state machinery to what we consider true religion, do 
 not seem condemnable. 
 
 (2) We may argue that the ruler could not prove 
 the truth of his religion without first setting up some 
 standard of right and wrong independent of that 
 religion. Unfortunately, Locke was one of the few 
 philosophers to whom this line of argument was not 
 open. But if we accept our religion because we first 
 accept some ethical creed, then we cannot say that we 
 ought to enforce any commands of that religion which 
 are flagrantly at variance with those moral doctrines 
 on which the proof of our religion rests. 
 
 The third argument may be for a moment post- 
 poned. Here we will refer to Coleridge's criticism of 
 Locke. "It would," he says, "require stronger argu- 
 ments than any which I have heard as yet, to prove 
 that men have not a right, involved in an imperative 
 duty, to deter those under their control from teaching 
 or countenancing doctrines which they believe to be 
 damnable, and even to punish with death those who 
 violate such prohibition. I am sure that Bellarmine 
 would have had small difficulty in turning Locke round 
 his finger's end upon this ground.... The only true 
 argument as it seems to me, apart from Christianity, 
 for a discriminating toleration, is that it is of no use to 
 attempt to stop heresy or schism by persecution, unless 
 perhaps it be conducted upon the plan of direct war- 
 fare and massacred" This is in the main quite true. 
 Locke's argument about the two spheres is faulty, and 
 ' Table Talk, 3rd Jan., 1834. 
 
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Liberty 93 
 
 having merged ethics in religion, he has nothing left 
 to appeal to but the religion of the ruler ; all he can 
 say to the persecuting prince is that Christianity does 
 not permit persecution. If the prince were not a 
 Christian, Locke must content himself with saying 
 that Christianity is " reasonable," and that therefore 
 the prince ought to be a Christian. But Locke has 
 one argument in reserve, and this is the really important 
 argument, and this Coleridge fails to see. It must now 
 be stated. 
 
 (3) Milton in the Areopagitica argues that the 
 suppression of unlicensed books is " the stop of truth." 
 Now what does this imply ? Why, that governors 
 cannot be certain that they know what the truth is. 
 The Areopagitica sounds like a prolonged echo of 
 Gamaliel's words, " Refrain from these men, and let 
 them alone, ...lest haply ye be found even to fight 
 against God." This will bear translating from the 
 religious language ; it is advice not to persecute 
 because we may be persecuting the truth. This argu- 
 ment is not put very prominently forward by Locke, 
 but it runs through his whole work. Suppose now 
 that we argue before the persecuting prince that 
 (though, if he be absolutely certain of the truth of his 
 religion, that religion alone can set bounds to his 
 persecution) he ought not to be absolutely certain of 
 his religion ; that the evidence does not justify absolute 
 certainty ; we throw him back upon some independent 
 moral creed. Perhaps he has no such creed to fall 
 back upon ? Then our case is hopeless, but at any 
 rate he can no longer say that it is his religion which 
 obliges him to persecute ; if he will justify his acts at 
 
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94 Political Philosophy in England 
 
 all, he must justify them by some other standard than 
 his religion ; if he will not justify them, argument is 
 obviously thrown away. If however we can get him 
 to accept any known ethical creed, then we have 
 ground for a fresh plea for toleration. 
 
 Do we then say that it is the duty of rulers to 
 doubt their religion, to think that other religions may 
 be equally true ? Not quite. It was not the least of 
 Butler's services to English philosophy that he insisted 
 on probability being the real guide of our lives. Now 
 probability essentially admits of degrees, and it is 
 ■possible , that we may hold some opinion to be suf- 
 ficiently probable to justify us in acting on it in some 
 cases, though not in all. We may have such a degree 
 ;of assurance of the truth of some ddctrine, that any 
 known rnoral creed would oblige us to guide our more 
 private actions by it, and yet would oblige us to refrain 
 from forcing it upon, our neighbours. We see indica- 
 tions that such thoughts as this have been present to 
 the minds of those who have pleaded for toleration. 
 This will serve to explain and justify the fact that the 
 pleaders for toleration limit the field to which tolera- 
 tion is applicable, a fact otherwise only explicable by 
 cynicism. We find that Milton and Locke will tolerate 
 those opinions which seem to them just possibly true. 
 Milton stops short at " popery and open superstition... 
 that also which is impious or evil absolutely either 
 against faith or manners^" Locke stops, short at 
 popery and atheism^ Mill does not stop, short at all. 
 
 ' Areop. 
 
 " Letter Concerning Toleration. [Locke's Works, 1751, vol. 11. •, 
 pp. 260 — 261.] 
 
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Liberty ^ 95 
 
 The question which these philosophers asked them- 
 selves was — Can the suppression of this or that opinion 
 conceivably be "the stop of truth"? If so, this is 
 one reason against any attempt at suppression. If 
 once it be admitted that there is considerable chance 
 of compulsion being exercised to promote not what is 
 right, but what is wrong, then the arguments of Milton, 
 Locke, and Mill become really forcible, and Bellarmine 
 could scarcely make such short work of Locke as 
 Coleridge imagined ; for the persecutor requires it to 
 be granted that if we accept a doctrine as true enough 
 for some purposes, we must accept it as true enough 
 for all purposes. But this is just what the reader of 
 Butler will never grant. 
 
 Toleration is often pleaded for on too weak grounds. 
 We can scarcely ask the ruler not to interfere, without 
 suggesting to him that there is a chance of his own 
 opinions being wrong. The really convincing part 
 of Mill's argument is that in which he shows how 
 often intolerance has been on the side of falsehood. 
 Scepticism or doubt is the legitimate parent of 
 toleration. 
 
 The opinions of so essentially religious a philosopher 
 as Coleridge on this point have a peculiar value. If 
 the passage just quoted from his Table Talk stood 
 alone, we might suppose that he preferred the conclu- 
 sions of Bellarmine to those of Locke, but this is the 
 very reverse of the truth ; he was prepared to go as far 
 as Locke, though for different reasons. He speaks of 
 himself as " I who have... so earnestly contended that 
 religion cannot take on itself the character of law with- 
 out ipso facto ceasing to be religion, and that law could 
 
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96 Political Philosophy in England 
 
 neither recognize the obligations of religion for its 
 principles, nor become the pretended guardian and 
 protector of the faith, without degenerating into in- 
 quisitorial tyranny \" If we put this passage by the 
 side of the other, we shall come to the conclusion that 
 Coleridge held that it is Christianity itself which for- 
 bids law to recognize the obligations of religion as its 
 principles. This, no doubt, was his opinion, and it 
 adds one more to the pleas for toleration. Coleridge 
 certainly held that the outward object of virtue is the 
 greatest producible sum of happiness of all men''. Law 
 can only deal with what is outward, thus the greatest 
 happiness of all men must be the end at which all law 
 should aim'. At the same time he will not hear of 
 Utilitarianism in private ethics, because Utilitarianism 
 defeats its own end, because before we can attain the 
 outward object of virtue, we must have an inward 
 virtuous impulse which religion alone can supply. But 
 religion in politics, like Utilitarianism in ethics, defeats 
 its own end, for the outward object of virtue alone 
 comes within the purview of the law. This will explain 
 why it is that Coleridge directs his attack against Paley 
 rather than Bentham ; he did not object to Utilitarianism 
 as a principle of legislation, he did object to making 
 the future life a matter of calculation. Bentham was 
 incomplete, Paley was wrong. 
 
 This theory helps Coleridge to cut a difficult knot. 
 Warburton, holding that the State ought to form an 
 alliance with some Church, pronounces that the Church 
 
 ' Church and State, Advertisement. 
 
 ^ Aids to Reflection, Prud. Aph. 11. Comment. 
 
 ' The Friend, Essay in. 
 
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Liberty 97 
 
 which should be chosen, is that to which the mass of 
 the subjects belong. With this Mr Gladstone ex- 
 pressed himself dissatisfied; the prince, he thought, 
 is in duty bound to give every advantage to his own 
 religion^ 
 
 Coleridge, like Warburton and Mr Gladstone, would 
 have an established Church, but he contends that re- 
 ligion itself obliges us to accept expedience as the 
 measure for law, law must not recognize the obligations 
 of religion for its principles, it must when treating of 
 religion consider only its " this-worldian " effects. The 
 national Church is not established to teach religion " in 
 the spiritual sense of the word, as understood in refer- 
 ence to a future state ^" It is merely a "blessed 
 accident " that the national clerisy can be the teachers 
 of religion in an exalted, spiritual sense ; this is not 
 what they are paid for ; they are paid for making 
 men better citizens, neighbours, subjects ; their " this- 
 worldian " utility is the measure of their services, and 
 those whoever they be who can best perform the func- 
 tion of making the people good, in a Utilitarian sense, 
 ought to be members of the national clerisy. 
 
 Now, if Coleridge's be the true Christian view of 
 the matter, there seems to be a chance of reconciling 
 those who are at issue about the duties of the State as 
 regards religious bodies. Bentham and the Oxford 
 tractators have scarce any ground in common, Bentham 
 and Coleridge are agreed about a first principle. 
 
 There have never been wanting arguments for re- 
 ligious toleration, for Christianity itself was a standing 
 
 ' The State in Relation to the Church, ch. ii. § i6. 
 ^ Church and State. 
 
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98 Political Philosophy in England 
 
 protest against persecution, but when we turn from 
 religious liberty to commercial liberty, the case is 
 different. As long as the real operation of commerce 
 was wholly misconceived, the now common arguments 
 for laisser /aire could not be brought forward. Some 
 conception of the way in which wealth is produced and 
 distributed must exist, before these arguments can 
 become evident. 
 
 The immense difficulties which King William's 
 government had to overcome in their reform of the 
 coinage gave birth to modern political economy ; the 
 supply was occasioned by a demand. The action of 
 money and the benefits of trade had already been the 
 subject of speculation in Greece, in England, above all 
 in Italy ; but the first sketch of the science as it at 
 present exists is, I believe, due to Locke, whose 
 services in the matter of the currency the government 
 had been wise enough to secure. As might be ex- 
 pected, Locke was not content until he had pene- 
 trated to first principles. In his Considerations of the 
 Lowering of Interest he incidentally lays down twenty- 
 one propositions which might be placed as headings to 
 the various chapters of the Wealth of Nations. 
 
 We may notice, that directly the distribution of 
 wealth becomes the subject of searching speculation, 
 the protest against legislative interference with com- 
 merce at once begins. Locke argued, in the way now 
 familiar, that it is futile to meddle with the rate of 
 interest. It is not however true to say with Macaulay' 
 that Locke went farther than Smith, and anticipated 
 Bentham. No, the honour of having been the first 
 
 ^ Hist. Engl., ch. xxi. 
 
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Liberty 99 
 
 consistent opponent of the usury laws fairly belongs to 
 Bentham. In fact, this is a most striking triumph of 
 systematic over unsystematic Utilitarianism. Locke, 
 Smith, Paley, all condemn the principle of the usury 
 laws, but they are not prepared to recommend their 
 abolition ; they catch at some straw of popular preju- 
 dice. Usurers must not have a monopoly', projectors 
 should not be favoured", governments should be able 
 to borrow at a low rate^ Bentham's searching 
 analysis, his ceaseless question, why ? swept such 
 arguments aside. It was because he was determined 
 to call no law good if it did not produce more pleasure 
 than pain, that he was able to convert Adam Smith, to 
 win exaggerated praises from so unsympathetic a critic 
 as Mackintosh ^ and, as Hallam' says, to convince the 
 thinking part of mankind. 
 
 To return. Hume's economic essays must also have 
 influenced Adam Smith ; whatever Hume touched he 
 illuminated. But when all is said, the Wealth of 
 Nations is the first systematic book on what is now 
 called political economy, it is,^^lso the first powerful 
 plea for commercial freedom. The oTfficnity of the 
 work which Smith set himself to do can scarcely be 
 overrated. A society founded on custom had given 
 way to a society founded on competition, but the 
 operations of the new economic force had never been 
 explained. Even Bacon's mind could not penetrate 
 
 ^ Lockis Works, vol. n., p. 33. 
 
 ^ Wealth of Nations, Bk. 11., ch. iv. 
 
 ' Mor. and Pol. Phil., 11. x. 
 
 * Hist. Eth. Phil (3rd ed.), p. 240. 
 
 ' Hist. Lit., vol. IV., ch. iv. 
 
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loo Political Philosophy in England 
 
 the mists which hung over the taking of usury\ Here 
 also fiction had to be expelled by science. 
 
 Adam Smith wrote the Wealth of Nations in part 
 fulfilment of a promise to write a discourse " on the 
 general principles of law and government." His 
 purpose was to shew what laws ought to be made 
 concerning "police, revenue, and arms^" Thus his 
 conception of political economy obviously differs from 
 that of Ricardo and his followers. Political economy 
 is now looked upon as a science, teaching what is, or 
 what in certain circumstances will be, the way in which 
 wealth is produced and distributed. Doubtless it is 
 well to separate the consideration of what is, and what 
 will be, from the consideration of what ought to be, 
 such a separation is dictated by logical convenience ; 
 but if this separation is to be made, it should be made 
 consistently, and it never is made consistently. Even 
 the scientific Ricardo breaks off his almost algebraic 
 speculations to tell us what is the only justification for 
 the poor laws^ As long as we are careful to keep 
 ourselves from appealing to any ideal, as long as we 
 neither justify nor condemn, there seem good reasons 
 for separating the science of political economy from the 
 general science of society, sociology, or ethology as it 
 is called. The best reason is, that the former exists, 
 that it has done good work, discovered valuable truths, 
 truths verified by experience, and that there is no cause 
 for thinking that its work is done, while on the other 
 
 ' Essays : Of Usury. 
 
 '^ Comp. Moral Sentiments, vii. iv., with preface to 6th edition of 
 that work. 
 
 ' Pol. Econ., ch. V. 
 
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JUN 2r; 1912 
 
 Liberty LAW LI^KMY. 
 
 hand, we know little more than the name of sociology. 
 We may add that even when a social science becomes 
 a reality there still may be room for a deductive science 
 inquiring into the effects of the wealth-getting motives. 
 As long as we carefully exclude the ideal, the moral, 
 and concern ourselves only with what is, and what will 
 be, there is little difficulty in answering the objections 
 of Comte and Coleridge ; we merely appeal to ex- 
 perience ; we say, for instance, that the theory of 
 foreign exchanges, as taught by Mill, really does 
 explain those complicated phenomena of the money 
 market which were previously inexplicable. But if 
 once we begin to say how the production and distribu- 
 tion of wealth ought to be carried on we can no longer 
 confine our attention to facts about wealth. We have 
 to decide how far wealth is desirable, we have to com- 
 pare wealth with other desirable objects. We cannot 
 say that laisser /aire should be our rule until we are 
 agreed upon subjects which are quite alien to the 
 science of wealth. Our economists should make their 
 choice, either they must give up talking about what 
 ought to be, or they must take into consideration ethical 
 and political doctrines on which the methods of the 
 science of wealth throw no light. Of all our writers 
 on political economy the most successful have been 
 those who have most constantly kept in view the fact 
 that when the economist begins to justify and condemn, 
 he has passed the bounds of his own special science, 
 he has become a moralist, and must behave as such. 
 Aristotle introduces what he has to say about how men 
 ought to act in distributing wealth, into the middle of 
 that book of his Ethics which deals with the virtue of 
 
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I02 Political Philosophy in England 
 
 justice. Sir A. Grant thinks that to make political 
 economy a part of morals is a mistake we should never 
 now fall into\ But surely the Greek philosopher is 
 more right than his critic. If we say that wealth 
 ought to be distributed in this or that way, we do set 
 forth a distinctly moral theory, a theory which we are 
 bound to defend in the lists of ethics. No amount of 
 truths about what is, or what in certain circumstances 
 will be, can make one truth as to what ought to be. 
 Therefore we should object to the practice of some of 
 our economists, who seem to press upon us the doctrine 
 that the State ought not to interfere with commerce, as 
 if this was deducible from the doctrine that all men try 
 to buy as cheaply and sell as dearly as possible ^ 
 
 The reasons which Mill has given for separating 
 political economy from ethology appear perfectly valid, 
 as long as political economy keeps clear of what 
 ought to be' ; but there is no reason for thinking that 
 the ethics of the distribution of wealth can be separated 
 from general ethics. Adam Smith and Mill have 
 recognized this more clearly than many of their fellows, 
 and they have their reward. 
 
 Now to consider the arguments in favour of com- 
 mercial freedom. The first and most popular is based 
 on a supposed harmony of economic interests. It is 
 said that every man best provides for the economic 
 interests of the whole by providing for his own 
 
 ' Essays, App. C. 
 
 ^ Specimens of such a procedure could be extracted from several 
 popular manuals ; they go far to justify Coleridge's opinion that 
 Political Economy is solemn humbug. (Table Talk, March 17th, 
 1833.) ^ Logic,y\. ix. 3. 
 
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Liberty 103 
 
 economic interests. Adam Smith started this argu- 
 ment. " As every individual therefore endeavours as 
 much as he can both to employ his capital in the 
 support of domestic industry, and so to direct that 
 industry that its produce may be of the greatest value, 
 every individual necessarily labours to render the 
 annual revenue of the society as great as he can,... 
 he is in this, as in many other cases, led by an invisible 
 hand to promote an end which was no part of his 
 intention. Nor is it always the worse for the society 
 that it was no part of it. By pursuing his interest he 
 frequently promotes that of the society more effectually 
 than when he intends to promote it." First let us 
 notice the " invisible hand " ; these words point to the 
 source of Adam Smith's ethics, the optimist school of 
 Hobbes' opponents, those who thought that true self- 
 love and social are the same, that it was derogatory to 
 the honour of God Almighty that he should have left 
 his master-workmanship Man in a state of war\ This 
 is not unimportant, for this belief in a providence 
 directing our selfish aims to social good, has formed 
 one of the strongest arguments for laisser faire. But 
 passing this by, it will be seen that Adam Smith's 
 belief in the harmony of economic interests did not 
 carry him very far. In one place he admits that the 
 interest of the capitalist is not consonant with the 
 interests of the landlord and the labourer I His 
 grounds for thinking that the interests of the landlord 
 are more consonant with those of the labourers than 
 with those of the capitalist would now be considered 
 unsound ; but this admission of a partial dissonance is 
 ' Clarendon's Reply to Hobbes. ' I. xi. Conclusion. 
 
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I04 Political Philosophy in England 
 
 extremely damaging to the popular argument for laisser 
 /aire. The invisible hand has after all failed to har- 
 monize our economic interests. It cannot be too much 
 insisted on that Adam Smith threw really very little 
 weight on these d, priori arguments about harmony, in 
 which Bastiat delights ; they are not essential parts of 
 his argument against the mercantile theory, they are 
 obiter dicta. The real leading argument is : you say 
 that your system of interference enriches the country, 
 by bringing into it gold and silver ; I will shew that 
 gold and silver are not peculiarly desirable forms of 
 wealth, that your system checks the growth of what 
 you will admit is real wealth, that it does not even 
 attain its own worthless object. Adam Smith's argu- 
 ment is for the most part ad homines, his opponents 
 justified a meddling policy as productive of wealth, 
 and Adam Smith completely refuted this justification. 
 But what is the really powerful part of the refutation ? 
 Not the assertion about an invisible hand, but the 
 detailed proof that all the restraints on free trade 
 imposed or suggested had failed, and must fail. When 
 we further notice that Adam Smith's assertions about 
 the harmony of interests are chiefly meant to show 
 that all men have an interest (not necessarily an equal 
 interest) in the freedom of international trade, when 
 we notice that in the conclusion of his first book in a 
 sort of summary of its results, he warns us that the 
 judgment of capitalists about the interests of society is 
 to be taken with reserve, as it is warped by their judg- 
 ment of their own interests, we cannot appeal to him 
 as the father of those who see nothing but harmonies 
 in political economy. What would Bastiat say to this : 
 
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Liberty 105 
 
 the proposals made by capitalists come from " an order 
 of men whose interest is never exactly the same with 
 that of the public, who have generally an interest to 
 deceive and even to oppress the public " ? Above all, 
 Adam Smith certainly did not believe that the economic 
 interests of a nation are always harmonious with its 
 other interests. 
 
 Have the additions to political economy made 
 since Smith's day shewn our economic interests to be 
 more harmonious than he thought them ? Surely the 
 reverse. Malthus has pointed to a social force which, 
 since it plays a great part in the distribution of wealth, 
 may be called economic, and which would seem to 
 cause a divergence between the interests of various 
 classes of society. It is said that as a fact men do go 
 on increasing their numbers until there is always a 
 large class who can barely obtain the necessaries of 
 life. Is it to the capitalist's economic interest that this 
 should not be so ? The fact should be admitted. It 
 is distinctly to the economic interest of the capitalist 
 that there should be as many people as possible willing 
 to work for as small wages as possible, always provided 
 that the breed of labourers be not seriously damaged 
 by overcrowding and insufficient food. Is this a new 
 harmony 1 It was a sound instinct that made those 
 who hoped for the improvement ("melioration" was 
 the word then) of mankind by trusting to the play of 
 selfish but harmonious instincts to talk about " godless 
 Malthusianism." Malthus did strike a blow at the 
 eighteenth century conception of God, the Being who 
 turns selfishness into benevolence. 
 
 What is the greatest discovery of modern economy ? 
 
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io6 Political Philosophy in England 
 
 Most men would say Ricardo's Law of Rent. This 
 again shews an obvious discord between the interests 
 of the landlords and those of the labouring classes. It 
 is to the landlord's economic interest that population 
 should not be diminished, Bastiat saw the want of 
 harmony here ; he denied the truth of Ricardo's law. 
 He might as well have denied the truth of Euclid. 
 Again, no amount of the special pleading, of which he 
 was a master, can get over this simple fact. It is 
 distinctly contrary to the economic interests of the 
 capitalist that labourers should become any richer 
 than they now are, their numbers remaining constant. 
 Whatever view we may take of ethics, surely there is 
 a strong prima facie case for saying with Carlyle that 
 laissez faire and Malthus positively must part com- 
 pany' ? But only a prima facie case. The main 
 argument of the Wealth of Nations remains to this 
 day a valid reason for leaving trade free, and the main 
 argument is that interference only makes bad worse. 
 This has been forcibly repeated by post- Mai thusian 
 economists, who have argued that our present system 
 of private property, freedom of contract, considerable 
 testamentary powers, is in its broad outlines more 
 likely to produce the happiness of mankind than any 
 other legislative system yet sketched out. The argu- 
 ment is, briefly, that in our present system legislative 
 interference is nearly at a minimum ; that any other 
 system would require constant and meddling inter- 
 ferences ; that such interferences themselves cause 
 pain ; that such interferences would be futile, the 
 economic forces with which they have to contend being 
 
 ' Chartism. 
 
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Liberty 107 
 
 too powerful to be turned from their course ; that self- 
 reliance would be destroyed. But after all, the most 
 powerful argument is that based on the ignorance, the 
 necessary ignorance, of our rulers. The evil of 
 governmental interference varies with the probability 
 of the government being wrong, and until political 
 economy is a very much more perfect science than 
 there seems any chance of its being for a long time 
 yet, we may fairly say that there is great probability 
 that any governmental interference with commerce 
 would be made on mistaken grounds, and would defeat 
 its own end., Adaem Smith shewed by the method of 
 exhaustive failures that legislative interferences with 
 foreign trade have been hurtful or futile, and his 
 followers have successfully shewed that the same may 
 be said of interferences with commercial transactions 
 in general. 
 
 It is very necessary however that it should be seen 
 that the principle of laisser faire does not rest on a 
 belief in the harmony of interests. If such were the 
 case, it would be possible to say that since a man will 
 best consult the economic interests of the community 
 by attending to no one's interest but his own, to buy 
 cheap and sell dear is the whole economic duty of man. 
 It is this supposed corollary that excites opposition to 
 the principle, it is thought that the economic " Laissez 
 faire " involves the Rabelaisian " Fay ce que voudras." 
 That this is no necessary deduction, when the principle 
 is placed on a sound foundation, will readily be seen. 
 That the difficulty of opposing powerful economic 
 forces, the danger of giving wide powers to govern- 
 ment, the necessary ignorance of our governors, make 
 
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io8 Political Philosophy in England 
 
 it inadvisable that law should meddle with the settle- 
 ment of wages and prices, is no reason why the 
 individual should forget, in the distribution of his 
 wealth, that his own economic interests are frequently 
 directly opposed to the economic interests of others. 
 
 Adam Smith has remarked that the laws made 
 about religion and commerce have been peculiarly bad, 
 and we may notice that laws on these two subjects 
 were the first laws condemned as essentially going 
 beyond the proper province of law. Religion and 
 commerce seem ideas widely removed from each other, 
 but yet in the eye of the statesman -they have points in 
 common, (i) It is difficult to make laws about them 
 which shall not be futile. It is so easy to introduce 
 and circulate both smuggled goods and smuggled 
 opinions. The forces with which such laws have to 
 contend are the most powerful forces of human nature. 
 (2) Interference on the wrong side may produce the 
 worst effects ; it may bring starvation, it may be " the 
 stop of truth." (3) It is very probable that the 
 interference will be on the wrong side. There are no 
 subjects with which the statesman has to deal, the 
 logic of which is so elaborate and so difficult. This 
 last reason, though it is not often expressly insisted on 
 (we do not like to confess our own ignorance, or impress 
 on others their ignorance when we have nothing to 
 substitute for it) is really all-important. The states- 
 man has to consider the good he may do by interfering 
 on the right side, the evil he may do by interfering on 
 the wrong side, and also the probability of his knowing 
 which the right side is. The most convincing pleas 
 for laisser /aire, and the most convincing pleas for 
 
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Liberty 109 
 
 religious toleration, are those which insist a priori on 
 the great " probable error " of any opinions on matters 
 of religion, and matters of political economy, and 
 those which relate a posteriori the history of the 
 well-intentioned failures of wise and good men. 
 
 To return for a moment to democracy, the 
 connection between the liberty of democracy and com- 
 mercial liberty does not seem strong. We should say 
 that there is no reason why a monarch should not see 
 the folly of protection as soon as would the majority of 
 the nation ; his interests on this point may well be at 
 one with those of his subjects. The cases of France 
 under Napoleon III, and of the United States at the 
 present time shew that any connection which exists is 
 but weak. Nor does it appear that democracies are 
 peculiarly likely to be tolerant in matters of religion. 
 Hobbes certainly thought otherwise ; indeed it is not 
 improbable that a belief that an absolute monarchy 
 would allow the greatest freedom of thought, was the 
 motive power in making this bitter enemy of the clergy 
 of all confessions an apologist for the royal martyr. 
 However, it seems just plausible to say that though 
 contagious enthusiasm may make a democracy in- 
 tolerant, it will interfere first on this side, then on that, 
 until successive failures teach it wisdom. 
 
 We must pass from these special cases of laws 
 condemned as violations of liberty, to the more general 
 question of how we are to know those laws which 
 violate the desirable liberty. First let us mention one 
 or two definitions of liberty. Harrington' says "the 
 liberty of a commonwealth is the empire of the laws," 
 1 Op. at, p. 45- 
 
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no Political Philosophy in England 
 
 not the laws m9.de by consent, but simply "the laws." 
 Liberty is here the absence of government by arbitrary 
 methods. Next we have another group of definitions. 
 Rutherforth, a commentator on Grotius, says that civil 
 liberty is " as much liberty as is consistent with the 
 obligation of the social compact' " — but of the social 
 compact we have already said enough. Blackstone 
 takes civil liberty to be " natural liberty so far restrained 
 by human laws (and no further) as is necessary and 
 expedient for the general advantage of the public^" 
 With Paley, civil liberty is "the being restrained by 
 no law but what in a greater degree conduces to the 
 public welfare'.'' But these two last definitions amount 
 merely to this, civil liberty is the absence of bad laws. 
 Is it possible to go beyond this, to say not that liberty 
 is the absence of bad laws, but that some laws are bad 
 because they interfere with liberty? Let us examine 
 the now common arguments against the multiplica- 
 tion of laws — arguments now common but once rare. 
 Harrington is one of the few of our earlier philosophers 
 who has said, " the best rule as to your laws is that 
 they be few*." Milton objected to " the old entangle- 
 ment of iniquity, their gibrish lawsV' rather because 
 they hide the law of God than because they interfere 
 with Liberty. 
 
 ( 1 ) Bad laws may do a great deal of harm. This 
 argument is independent of the Benthamite doctrine 
 hereafter to be referred to, that all laws being restraints 
 are painful. This argument is open to moralists of all 
 
 ' Institutes, 11. viii. 7. ^ Comment., i. i. 
 
 ' Mor. and Pol. Phil, vi. x. ^ Op. Cit., p. 60. 
 ' Tenure of Kings. 
 
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Liberty 1 1 1 
 
 schools, for bad laws will give pain, violate conscience, 
 contradict true propositions ; we can use what phrase 
 we please. We only speak of the evils of bad laws. 
 
 (2) Laws are likely to be bad. The probable error 
 of even well-intentioned statesmen is great. Here 
 again all moralists can unite. We cannot trust our 
 rulers' knowledge of right and wrong, whether that 
 knowledge come from experience or from intuition. 
 Perhaps however the argument is most forcible in the 
 mouths of those who believe that calculation of conse- 
 quences is necessary. 
 
 The great difference between Mill's Essay on 
 Liberty and earlier writings on the same subject is, 
 that Mill resists the presumption that uniformity of 
 action is desirable. As long as the influence of Locke 
 was dominant, so long the convenient psychological 
 assumption that men are by nature very much alike, 
 ran through our political philosophy. Now if the 
 characters of men be alike, then when men are placed in 
 the same circumstances they ought to do the same 
 things ; this is the fundamental assumption of all moral 
 philosophers. If men be very much alike, then uni- 
 formity of conduct is desirable ; there is a presumption 
 that two men placed in the same external circumstances 
 ought to act in the same way. This presumption fails 
 if, as modern science teaches us, we are not endowed 
 with equal faculties at starting. Mill broke away from 
 the eighteenth-century tradition ; self-development " in 
 its richest variety " was not an ideal for the followers 
 of Locke, for there was a presumption against variety. 
 The resistance of this presumption gave new force to 
 the argument that laws will probably be bad. Law 
 
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1 1 2 Political Philosophy in England 
 
 can only deal with externals, it can scarcely concern 
 itself with character and the more reason • there is for 
 insisting on the character of the agent as a necessary 
 element in our consideration of the rightness of the 
 action, the less reason is there for thinking external 
 uniformity of action desirable. 
 
 We may add that probability being the guide of 
 life, the statesman is not obliged to assume that 
 because he believes some doctrine to be true enough 
 for some purposes, he ought to believe that it is true 
 enough for all purposes. 
 
 (3) Bentham says, " every restriction imposed 
 upon liberty is subject to be followed by a natural 
 sentiment of pain, greater or less... He who proposes 
 a coercive law ought to be ready to prove not only 
 that there is a specific reason in favour of it, but that 
 this reason is of more weight than the general reason 
 against every such law'." This is certainly a correct 
 deduction from Utilitarianism. To restrain or thwart 
 a man is always to give him pain. It must be doubtful 
 how far anti- Utilitarian moralists would admit that 
 this raised any presumption against a new law. Some- 
 times they speak as if the only desirable freedom was 
 to be found in right action. "Was ist die freieste 
 Freiheit ? Recht zu thun^" This leads us to look 
 upon those laws which oblige us to act morally, as 
 not really restraints ; they do but bind us to a service 
 which is perfect freedom. Hence there might be some 
 difference on this point. But if we put the question — 
 Is the pain caused by legal restraint in itself an evil ? 
 would it not be desirable to lessen this pain, if we 
 ' Treatise (Dumont), p. 94. ^ Goethe. Egmont. 
 
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Liberty 1 1 3 
 
 could, by other means secure the performance of the 
 moral action ? — we should probably get but one answer. 
 But, as a fact, this argument has come principally from 
 professed Utilitarians. They can look at absence of 
 restraint as per se desirable, for it is the absence of a 
 certain class of pains. So the Utilitarian, at any rate, 
 is not compelled to answer the question — " Who is at 
 liberty to do what, and from what restraint is he 
 liberated' ?" before he expresses a desire for liberty. 
 He wishes for freedom from the pain of restraint, just 
 as he wishes for freedom from the pain of gout. It 
 may be well for other people, or even for himself, that 
 he should be under restraint, just as it may be well for 
 them that he should have the gout ; but looked at by 
 itself and apart from its consequences, the Utilitarian 
 must hold that both for himself and for others, freedom 
 from restraint is desirable. 
 
 With such materials as these. Mill attempted to 
 establish a doctrine of Liberty as a middle axiom of 
 Utilitarianism. He attempted to obtain a principle by 
 reference to which we might condemn laws as inter- 
 fering with Liberty, without ascending in every case 
 to the supreme rule of Benthamism. In his Essay on 
 Liberty he says, " The object of this essay is to assert 
 one very simple principle as entitled to govern abso- 
 lutely the dealings of society with the individual in the 
 way of compulsion and control, whether the means 
 used be physical force in the form of legal penalties 
 or the moral coercion of public opinion. That prin- 
 ciple is, that the sole end for which mankind are 
 warranted, individually or collectively, in interfering 
 ' J. F. Stephen, Liberty, etc., p. 175. 
 
 M, 8 
 
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114 Political Philosophy in England 
 
 with the Hberty of action of any of their number, is 
 self-protection'." This seems quite opposed to what 
 Mill had said in his Political Economy, namely, that 
 the functions of government are not capable of being 
 circumscribed by those very definite lines of demarca- 
 tion which, in the considerateness of popular discussion, 
 it is attempted to draw round them. There, he says, 
 that to afford protection against force and fraud is too" 
 narrow a field. " There is a multitude of cases in 
 which governments, with general approbation, assume 
 powers and execute functions for which no reason can 
 be assigned, except the simple one that they conduce 
 to general convenience^" Nor can I think that the 
 former passage was intended to over-rule the latter, 
 for in the very Essay on Liberty it is admitted that 
 " for such actions as are prejudicial to the interests 
 of others the individual is accountable, and may be 
 subjected either to social or to legal punishment, if 
 society is of opinion that the one or the other is 
 requisite for its protection ^" In this last passage the 
 definiteness of " self-protection " vanishes. Society 
 may use coercion in order to protect itself against 
 actions prejudicial to its interests. In fact, we have to 
 extend self-protection until it means protection from 
 any pain. The ordinary use of words scarcely permits 
 this. Society could scarcely justify compulsory educa- 
 tion by the plea of self-protection. 
 
 Bentham said, " The care of his enjoyments ought 
 
 ^ J. F. Stephen, Liberty, ch. i. 
 
 ^ Pol. Econ., V. i. 2. There are even stronger expressions, too 
 long to quote. 
 '' Ch. V, 
 
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Liberty 1 1 5 
 
 to be left almost entirely to the individual. The 
 principal function of government is to guard against 
 pains'." The doctrine of Mill's essay (expanded, as it 
 must be, so as to make self-protection mean protection 
 against any pain) agrees with the passage, only the 
 words "almost" and "principally" must be omitted. 
 It is however doubtful whether the Utilitarian can 
 spare these words. Mill certainly would not have 
 objected to giving compulsory powers of purchase to 
 railway companies, and yet railways rather increase 
 our pleasures than diminish our pains. This is but 
 a type of a large class of cases, many of which are 
 expressly admitted in the Political Economy as being 
 cases where interference is justifiable. 
 
 Nor is the Utilitarian justified in saying that we 
 ought never to interfere with an individual for his own 
 good. We should probably push away a blind man 
 from the brink of a precipice. Neither can it be said 
 that we may only interfere in these cases when a man 
 is going to do what he does not want to do : this 
 principle would be too elastic, for the drunkard does 
 not want delirium tremens. The reason why we 
 should employ force in the one case and not in the 
 other, is not that in the one case the pain is not 
 desired, while in the other it is, but rather that we, the 
 interferers, are more certain of the impending evil in 
 the one than in the other, and are far more likely to 
 prevent the evil at a small expense of pain. 
 
 Thus, though Mill has done much towards making 
 the arguments for non-interference more complete, he 
 has not been able to establish a precise middle axiom of 
 ' Treatise, p. 95. 
 
 8—3 
 
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ii6 Political Philosophy in England 
 
 Utilitarianism. The doctrine of his PoHtical Economy, 
 that no reason can be given for a multitude of govern- 
 mental interferences, "except the simple one, that they 
 conduce to general convenience," must be taken as the 
 last word of Benthamism on the subject of Liberty. 
 
 ' All therefore that we get from Utilitarianism by 
 way of a protest for liberty is the assertion that all 
 restraint is painful, and therefore prima facie bad. 
 Besides this we have much proof that interferences on 
 the wrong side may do much evil, and that it is far 
 from improbable that interferences will be on the 
 wrong side. This being so, we can scarcely make the 
 minimization of restraint our political ideal. One of 
 the strongest reasons for non-interference is one which 
 we may hope will rather lose than gain in strength — 
 we may hope that the "probable error" of legislation 
 may in time be diminished. 
 
 There is however a newer philosophy which makes 
 absence of restraint its ideal. Mr Spencer's doctrines 
 are in many ways thoroughly post-Coleridgean, but 
 something may be said of their historical origin. 
 Coleridge, in his sketch of political philosophy, men- 
 tions three systems: (i) that of Hobbes, based on fear; 
 (2) that of expediency, to which Coleridge professed 
 himself attached ; (3) that of the pure reason. In his 
 description of the last he refers to Rousseau, but the 
 doctrines as he sets them forth are more German than 
 French in their form — they are more the doctrines of 
 Kant than of Rousseau. The ideal of this system 
 was, he says, that legislation should remove all obstruc- 
 tions to free action, and do nothing more. "The 
 greatest possible happiness of a people is not accord- 
 
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Liberty 1 1 7 
 
 ing to this system the object of a governor, but to 
 preserve the freedom of all by coercing within the 
 requisite bounds the freedom of each\" Such words 
 are familiar to us now. Coleridge himself had been an 
 ardent admirer of this system — he had founded on it 
 his scheme of Pantisocracy ; to the end he treated it 
 with regretful respect ; but he found himself obliged to 
 abandon and refute it, because he thought that it 
 logically led him to absurd conclusions. It was too 
 good for this world ; it is " under any form imprac- 
 ticable"; an attempt to realize it "would necessarily 
 lead to general barbarism and the most grinding 
 oppression." Coleridge's opinion is all the more valu- 
 able because he cannot be charged with empiricism — 
 he loved whatever belonged to the pure reason. 
 
 Mr Spencer desires the minimization of all re- 
 straints. From this he passes to the recommendation 
 of the abolition of all government as an ultimate ideal. 
 Now here we do at last see the end of the conventional 
 theory. We saw how when Rousseau had established 
 his democracy, he was reduced to a sophism to prove 
 that men, when punished, have given their consent to 
 be punished. This could not last ; if we are to be 
 under no laws save those to which we have consented 
 (and Sydney says that this ought to be the case), surely 
 we ought to be able to annul a law by withdrawing 
 our consent. We must make consent more real 
 yet ; we must pass Rousseau and join Mr Spencer. 
 Mr Spencer has really a strong historical case. He 
 might say that Hooker, Milton, Locke, Sydney, Rous- 
 seau, have laid down a maxim which leads to his 
 1 The Friend, Essay IV. 
 
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ii8 Political Philosophy in England 
 
 theory, that Hobbes, Burke, and Conservatives in 
 general have been obliged to invent a spurious 
 imitation, that Coleridge and Whewell cannot bring 
 themselves to quite abandon his principle. But then 
 there is Hume, Bentham, Mill, and Coleridge (when 
 he can forget his first love) ; what of these ? Mr Spencer 
 tries to fuse his system with Utilitarianism. If we 
 will but leave action unrestrained, nature will do the 
 rest, and will produce a race of men perfectly happy, 
 because perfectly adapted to their environment ; thus 
 a scientifically sanctioned process is substituted for the 
 Benthamite rule of thumb. Unfortunately, Mr Spencer 
 refuses to deal with " moral therapeutics " — which are 
 what the world must be concerned with for the next 
 few million years — and constructs a philosophy of rights 
 for men adapted to their environment ; so it is hard to 
 say what chance he has of converting the Utilitarian 
 from his "moral infidelity^" 
 
 In order to gain over the Utilitarian he must shew 
 not only that to set about minimizing restraints will 
 ultimately produce a state of perfect bliss, but that, 
 taking into consideration the present as well as the 
 future, and properly discounting the future, the happi- 
 ness of mankind would be added to by every diminution 
 of restraint. This may be the case, and yet it will be 
 difficult to prove that it is so, unless one simple pro- 
 position be true, namely, that each individual's happiness 
 varies inversely with the restraints which he is under. 
 If this be not true it does not indeed follow that 
 Mr Spencer's rule may not be the best method of 
 obtaining Bentham's object; it may be that though the 
 ^ Social Statics, ch. xx. 
 
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Liberty 1 1 9 
 
 greatest freedom of all is the greatest happiness of all, 
 yet the freest individual is not the happiest. But if 
 this be the case we can scarcely hope to shew the 
 harmony between Bentham's Supreme Rule and the 
 maxim of Liberty, the proof is quite beyond any 
 methods at our command. And it certainly is not true 
 that the individual's happiness varies with his freedom 
 from restraints due to other men. From such re- 
 straints Alexander Selkirk was perfectly free, and yet 
 he was not happy. 
 
 This being so, an empirical proof that the minimi- 
 zation of restraints produces the maximum of happiness 
 seems impossible. As to the scientific proof from 
 adaptation, it only shews that at some future time there 
 will be a race of completely happy men, it cannot shew 
 that the Utilitarian should sacrifice the happiness of 
 present generations to the happiness of future, and so 
 we most certainly require a scheme of moral thera- 
 peutics, of ethics for imperfect beings. Lastly, there 
 is the theological argument from design, and this seems 
 stronger. Systems of absolute rights require such a 
 theological basis as Locke relied on. But this is 
 scarcely cogent when we substitute the "Unknowable" 
 of the First Principles for the "God" of the Social 
 Statics. 
 
 If with Kant we attach some supreme value to the 
 action of free will, thinking it the only good per se, it 
 is natural to make the minimization of restraints on free 
 will the supreme principle of law ; but we cannot yet 
 say that this is compatible with Utilitarianism, with 
 which, very prudently, Kant will have nothing to do. 
 His doctrine appears to be that since the law cannot 
 
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120 Political Philosophy in England 
 
 deal with anything but externals, and therefore is no 
 judge of the internal freedom of an action, the minimi- 
 zation of restraints on all action is the proper jural 
 means to the minimization of restraints on free action. 
 The problem therefore is the minimization of all re- 
 straints (or of all restraints caused by human action) 
 by law. But every law implies restraint. Therefore 
 we have to get rid of greater restraints by imposing 
 smaller restraints. To do this we must have some 
 measure of the greatness of a restraint. What shall 
 this be ? We look in vain for an answer. There is 
 only one measure which seems possible, and that is the 
 greatness of the pain caused by the restraint. So our 
 rule becomes, — Minimize the pain of restraint. Thus 
 even the purest Kantian who takes the analysis of the 
 idea of freedom as the means of discovering what law 
 ought to be has to admit a calculus of pleasure and 
 pain into his politics. This should be remembered 
 when the philosophers who would deduce Ideal Law 
 from the maxim of Liberty assert as against the 
 Utilitarian that such a calculus is impossible. If it be 
 impossible we have not yet found a first principle of 
 Politics. 
 
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Eqtiality 1 2 1 
 
 {b) EQUALITY. 
 
 Equality has never been so universally accepted an 
 ideal of politics as Liberty. Still, it would on all hands 
 be admitted that "Equality before the law" is good. 
 We require — (i) an impartial administration of justice, 
 and (2) impartial laws — that is, laws making no distinc- 
 tions save such as are necessary consequences of the 
 principle according to which all laws should be framed \ 
 But we must pass to more controverted matter, to the 
 claims which have been made in favour of equality of 
 political power, and equality of property 
 
 The premises from which Locke would deduce a 
 system of morality are : the existence of a Supreme 
 Being, infinite in power, goodness, and wisdom, whose 
 workmanship we are, and on whOm we depend ; and 
 of ourselves as understanding, rational beings^ But 
 when we see him at work on his political system we 
 find that he has obtained another premise, which is not 
 a consequence of those just mentioned. Men are 
 "promiscuously born to all the same advantages of 
 nature, and the use of the same faculties^" Now in 
 favour of this doctrine of the equality of men's natural 
 faculties Locke has scarcely a word to say. This is 
 the very corner-stone of Locke's politics ; he quietly 
 assumes it. Whether Locke took it from Hobbes may 
 be doubted ; but it is noticeable that this assumption 
 
 1 Sidgwick, Method of Ethics, in. v. 
 
 ''■ Hum. Under., iv. Hi. i8. ' Gov., \\. iv. 
 
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122 Political Philosophy in England 
 
 is made by our first psychologist, and had its origin in 
 the psychologist's belief that introspection gives us a 
 clue to human action. At any rate, it was not until 
 the' study of psychology was supplemented by other 
 studies that this belief was abandoned. The study of 
 history was not sufficient ; Adam Smith had not freed 
 himself from it. That we now see it to be false is due 
 chiefly to those who have studied physiology as well as 
 psychology. 
 
 Locke's denial of innate ideas and innate principles 
 probably led, though it did not drive him to this 
 opinion. Though antecedently to all experience a 
 man's mind may be a blank, it does not follow that the 
 same external influences will produce the same effects 
 on all blank minds. It is not necessary to Locke's 
 argument against innate ideas that similar characters 
 should be formed by similar external circumstances 
 acting on different minds. 
 
 But after all, this matters little. Let us grant that 
 all men are equal at starting, must we say that they 
 are always to be treated as equals ? Now, to say that 
 those who come out of God's hand as equals should 
 always be treated as equals, is just specious ; but there 
 is a difficulty which stares Locke in the face. How 
 are we to justify paternal power ? Paternal power has 
 been a standing protest against those who would found 
 a system on natural equality. Locke has to admit that 
 idiots, minors, and lunatics may be coerced without 
 their consent being asked, and the reason he gives is, 
 that such persons cannot know the law of nature. 
 Those who have a natural right to be free and equal 
 are those who have a capacity of knowing the law, and 
 
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Equality 1 23 
 
 this capacity all men of the age of twenty-one and up- 
 wards have, and have apparently in an equal degree, 
 if we except idiots and lunatics'. Now of this, his 
 fundamental proposition, Locke gives no proof what- 
 soever, he gives no proof that our faculty of knowing 
 the law of nature is not a matter of degree. If all men 
 are, after the age of twenty-one, capable of knowing 
 the law of nature, what are we to say of atheists, who, 
 as Locke says cannot, or will not, acknowledge such a 
 law? Kilmer's editor is triumphant; Solvitur Legendo ! 
 is in effect his reply. All men equal ? Who can write 
 like Sir Robert ? Locke's friends have a better right 
 to such an argument. It is particularly strange that 
 Locke should speak as if all men had an equal capacity 
 of perceiving the law of reason, for he is rather fond 
 of dwelling on the differences between the moral con- 
 ceptions of different men, on the crimes which men 
 can commit with " confidence and serenity," and has 
 been reproved for so doing^ And even if we have 
 equal faculties for perceiving the moral law (and it is 
 on the universality of " reason " that Locke lays most 
 stress) it does not follow that we have equal faculties 
 for doing what we know to be right. Thus, even 
 granting that all men are born with equal faculties, we 
 must still affirm that, at the age at which Locke would 
 set them free from all government to which they have 
 not consented, they are not equal in that faculty on 
 which their conduct as citizens depends, much less in 
 other faculties. 
 
 But it may be said that inequalities are adventitious, 
 
 ^ Gov., II. 52, et seq. 
 
 ^ Hum. Unci., i. iii. 9. Whewell, Hist. Mor. Phil., Lect. v. 
 
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124 Political Philosophy in England 
 
 that when we came from God's hand we were all equal, 
 and that this is evidence of God's intention. Without 
 entering deeply into theology, we may surely urge, in 
 the first place, that we have no reason to say that God 
 willed the equality of babies more than the inequality 
 of men. We must do one of two things, either we 
 must ascribe all events to God's will, or only good 
 events, and if we choose the latter alternative we must 
 know independently what goodness is. On the first 
 supposition we must say that tigers being God's work- 
 manship ought not to be destroyed. On the second, 
 if we accept Locke's account of good and evil, we must 
 say that equality of political power is only willed by 
 God when it is productive of pleasure. 
 
 But if there is little to be said for this argument as 
 it is in Locke, there is less to be said for it as it is in 
 Tom Paine. Locke says, "the taking away of God, 
 though but in thought, destroys all." Truly it destroys 
 his system ; we can argue about the intentions of God, 
 we cannot argue about the intentions of Nature, even 
 when we spell Nature with a capital letter. 
 
 Mr Spencer gets rid of one difficulty which troubled 
 his predecessors, he denies a paternal right of coercion 
 — we are to have a free nursery. In that complete 
 democracy which he thinks the one passable form of 
 government, lunatics, idiots, babies in arms are appa- 
 rently to have the suffrage. Coleridge said that this 
 was a legitimate deduction from the politics of pure 
 reason. Perhaps he thought this a reductio ad ab- 
 surdum. 
 
 Here appears one of the greatest diflSculties which 
 lie in the way of those who would transcend Utili- 
 
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Equality 1 25 
 
 tarianism, by setting up "the freedom of every man to 
 do all that he wills, provided that he infringes not the 
 equal freedom of any other man," as an Ideal of politics. 
 For such philosophers hold that a purely democratic 
 government " is the only one that is not intrinsically 
 criminaP," and yet they would find it hard to prove 
 that such a government is the one most likely to 
 acknowledge their supreme principle. If reason directs 
 us both to pure democracy and to the greatest freedom 
 of all, there is some chance of reason being self-contra- 
 dictory. Here is an antinomy, the recognition of one 
 portion of the rightful freedom of all may render im- 
 probable the realization of our complete ideal. What 
 we should do in this case may be a question not of 
 ethics, but of moral therapeutics, but it is one which 
 fairly tests the practical value of a philosophy. 
 
 We have however arguments for equality of political 
 power coming from a very different quarter, coming 
 from the strictest sect of empirical Utilitarians. 
 
 To determine the best form of government was 
 according to Bentham a very simple matter. What 
 we want is that the rulers shall be those only whose 
 interests are bound up with the interests of the people, 
 this is " the junction-of-interests principle." Any rulers 
 who are not answerable to the people will have sinister 
 interests, which will take the place of general interests 
 in their minds. He saw in pure democracy the one 
 way of securing rulers who have no sinister interests. 
 But the junction-of-interests-principle would seem only 
 fitted to secure "appropriate probity," and Bentham 
 also required "appropriate intellectual aptitude," and 
 ' Soc. Stat., ch. XX. 
 
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126 Political Philosophy in England 
 
 "appropriate active talent." Blackstone himself held 
 that virtue is the characteristic of democracy, but that 
 we require an admixture of monarchy and aristocracy 
 to give us strength and wisdom. But Bentham 
 thought that democracy will provide not only appro- 
 priate probity (virtue), but also appropriate intellectual 
 aptitude (wisdom), and appropriate active talent 
 (strength). In his Catechism of Parliamentary Reform 
 he does indeed seem to doubt whether pure democracy 
 will provide sufficient wisdom ; he would allow the 
 king to nominate certain members of the Assembly 
 who should have a right of speech, though no right of 
 voting\ But in his Constitutional Code, " Corrupter 
 General" has vanished, and we hear little of intellectual 
 aptitude and active talent. The one thing is to secure 
 governors who have no sinister interests "''. 
 
 The same theory, freed from all qualifications and 
 thrown into a precise form, was elaborated by James 
 Mill. The doctrine of his essay is so simple that it 
 may be stated in a few lines. " The reason for which 
 government exists is, that one man, if stronger than 
 another, will take from him whatever the other 
 possesses and he desires." There are three simple 
 forms of government : monarchy, aristocracy, demo- 
 cracy. The two former are bad, because the rulers will 
 engross all the materials of happiness. It might be 
 thought that they would be easily satiable. But no, 
 they are insatiable, for they require not only present 
 pleasure, but security for future pleasure. They will 
 therefore attempt to reduce their subjects into a state 
 
 ^ Bentham's Works, vol. in. pp. 542, 543. 
 ^ Vol. IX. p. 3, et seq. 
 
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Equality 127 
 
 of complete dependence. They will leave them but 
 the bare means of subsistence, they will keep them in 
 the most intense terror. Democracy has not the same 
 evils, for the rulers being all, the interests of the rulers 
 are the interests of all. But democracy without a 
 representative system is impossible. We should there- 
 fore try to obtain a representative government, which, 
 by means of universal, equal suffrage, constant elections, 
 and secret voting, should find its interest in acting in 
 exactly the same way as that in which a complete 
 assembly of the people would act, were it not too large 
 to act at all. 
 
 This was an effort to construct a pure deductive 
 science of government by the method of Hobbes. 
 An attempt was made to justify it by citing the success 
 of the same method when applied to political economy. 
 Coleridge declared that a pure science of political 
 economy was an impossibility ; experience shews that 
 he was wrong. But the pure deductive method which 
 does seem applicable to the narrow subject-matter of 
 plutology, is inapplicable in the wider science of politics. 
 We can make a supposition about the distribution of 
 wealth never very incorrect, in the case of great com- 
 mercial transactions absolutely true — Men will buy as 
 cheaply and sell as dearly as possible. On the other 
 hand, we have no one proposition about what all rulers 
 will do, sufficiently true to be the basis of a pure 
 science. Even if we admit that all men seek their own 
 interests, this is only true because it is vague. It is 
 obviously far less definite than the proposition from 
 which pure plutology starts. 
 
 Least of all can we admit James Mill's axioms. 
 
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128 Political Philosophy in England 
 
 He had taken his opinion of human nature from 
 Mandeville and Hobbes, and thought it demonstrable 
 that no king will be content until he has reduced his 
 subjects into perfect slavery. It is certainly amazing 
 that one who professed that he wished for the greatest 
 happiness of the greatest number should have allowed 
 no social impulses to any one else. If he imagined 
 that were he king he could still be a well-wisher to 
 mankind, the whole argument collapses. As it is, he 
 falls into all sorts of absurdities. Only males of forty 
 years old and upwards are to have votes. The interest 
 of those under forty is taken to be identical with the 
 interest of those over forty, and yet one man of forty 
 will always, if not deterred by fear, take from another 
 man of forty all that the latter has and the former 
 desires. The fact is, that were men such as they are 
 here painted, all discussion about government would 
 be utterly in vain. Not only would the state of nature 
 be a state of war, that is a trifle, it would be absolutely 
 demonstrable that no other state could exist. What 
 would be the first action of the representative assembly .i* 
 It would be a step towards reducing the rest of the 
 nation to slavery. Would they be kept in terror by 
 the prospect of losing their seats ? Would they not 
 rather take care that there should be no future election .-* 
 The people might thwart the attempt : but then, the 
 people can thwart the attempts of a king or of an 
 aristocracy. 
 
 Above all, who is it that will really make laws in a 
 democracy ? The majority. Then is it not absolutely 
 certain that they will reduce the minority into slavery? 
 
 This objection is powerful, but it must be admitted 
 
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Equality 1 29 
 
 that James Mill had some defence against it. Having 
 assumed that, at any rate for the purposes of a science 
 of government, we may look upon man simply as a 
 being desiring the materials of happiness, he could 
 maintain that in a democracy of such men there could 
 never exist any permanent party divisions. There 
 would be no permanent majority or minority. Combi- 
 nation to rob would have a limit. The poor majority 
 would of course pass laws taking from the rich minority 
 their wealth until wealth was equally distributed. 
 Beyond this they would not go. When equality of 
 power has given birth to equality of property, then all 
 further combination would, on our hypothesis as to 
 man's one motive, be impossible. A and B would have 
 no more temptation for combining to rob C, than A 
 and C have for combining to rob B, or B and C to rob 
 A. An equal distribution of property would thus be a 
 point of equilibrium. 
 
 But this shows the essential weakness of the posi- 
 tion. The political combinations of which we read are 
 seldom the results of a desire for wealth. Suppose 
 that in the community the majority are Catholics, the 
 minority Protestants, may not the former entirely 
 exclude the latter from the possession of any legislative 
 power 1 In such a case how would the Protestant be 
 better off than if he were the subject of a Catholic 
 prince .•* The laws made would be laws made by 
 Catholics, not laws made partly by Protestants, partly 
 by Catholics. The whole legislative force moves as 
 the majority wishes, there is no diagonal between the 
 ayes and the noes. Doubtless the grievances of the 
 Protestants will be heard, and this is a real and power- 
 
 M, 9 
 
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130 Political Philosophy in England 
 
 ful argument for representative government, men being 
 what they are ; it would be no argument at all were 
 men such as James Mill described them. That the 
 community " cannot have an interest opposite to its 
 interests," is doubtless true, but that a majority of the 
 citizens can have an interest opposite to the interests 
 of the whole, is equally true, and far more important. 
 
 James Mill however would reduce his opponents to 
 an absurdity, by saying that if men are not what he 
 represents them, then there is no necessity for govern- 
 ment. A more easily exposed fallacy was never given 
 to the world. We want government not because all 
 men are what he represents them, but because some 
 men are something like what he represents all men to 
 be. Were there but one thousand of his "men" in the 
 country, we should require a government. But this 
 would not do for James Mill, he must have a universal 
 proposition or nothing. What is true of one man is 
 true of all ; this assumption of the psychologists has 
 been the bane of our political philosophy. 
 
 In his Fragment on Mackintosh Mill defended his 
 Essay on Government. He actually cites Plato and 
 Hume as witnesses for the defence, because they held 
 that there should be some community of interests 
 between the rulers and the ruled. There was no need 
 to bring philosophic authority in favour of so common 
 a common-place. The questions of his opponents, 
 which James Mill had really to answer, were : (i) Is a 
 community of interest between the ruler and the ruled 
 all that you require — is it not necessary that the ruler 
 should have the power as well as the will to rule well ? 
 (2) Is this power to be found in representative govern- 
 
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Equality 131 
 
 ments ? (3) Can you prove that the interests of the 
 majority and the interests of the whole must be 
 identical ? (4) Is it not demonstrable from your prin- 
 ciples that peaceful government is an impossibility ? 
 (5) Has not your theory been contradicted by the whole 
 course of history ? In answering this last question " let 
 him bethink himself of the age in which there was 
 scarcely a throne in Europe which was not filled by a 
 liberal and reforming king, a liberal and reforming 
 emperor, or, strangest of all, a liberal and reforming 
 pope\" There is scarcely a Tory who would not allow 
 some force to the junction-of-interests principle, but 
 there is not the slightest absurdity in believing with 
 Plato and Hume, with men in general, that the ruler 
 should be one who has the same interests as the ruled, 
 and at the same time rejecting the democratic ideal. 
 
 As to the authority of Hume. Hume certainly 
 says " political writers have established it as a maxim, 
 that in contriving any system of government, and 
 fixing the several checks and controls of the constitu- 
 tion, every man ought to be supposed a knave, and to 
 have no other end in all his actions than private 
 interest^" But common sense would tell us that we 
 ought not to make our constitution one fitted only for 
 perfectly wise and virtuous beings. The whole mean- 
 ing of Hume's sentence depends on the meaning of 
 self-interest. Interest is an elastic word. Hume would 
 not have agreed to the following (which will shew how 
 far James Mill could go). "We have seen that the 
 principle of human nature, upon which the necessity of 
 government is founded, the propensity of one man to 
 1 J. S. Mill, Represent. Gov. (ed. 3), p. 15. ' Essays, i. vi. 
 
 9—2 
 
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132 Political Philosophy in England 
 
 possess himself of the objects of desire at the cost of 
 another leads on by infallible sequence, where power 
 over a community is attained, and nothing checks, not 
 only to that degree of plunder which leaves the 
 members (excepting always the recipients and instru- 
 ments of the plunder) the bare means of subsistence, 
 but to that degree of cruelty which is necessary to keep 
 in existence the most intense terrors." It is further 
 to be gathered from the context that the qualifying 
 words " where nothing checks," mean " where no fear 
 checks." 
 
 This argument for equality of political power, 
 though in many ways so different from Locke's 
 doctrine, has its origin in the same tendency, the 
 tendency to overlook the differences between men. 
 We see this tendency at work as soon as ever an 
 attack is made on the doctrine of innate ideas. Hobbes 
 expressly announces that introspection gives us the 
 true clue to human action, history is worthless^ This 
 was not necessary to Locke in his argument against 
 innate ideas; but it was extremely natural to assume 
 that all blank minds are the same. Bentham and 
 James Mill do not conclude from this that all men 
 ought to be treated equally by introducing a theological 
 doctrine ; but the supposition colours all their philo- 
 sophy. They could not conclude from this that all 
 grown men when placed in the same circumstances will 
 have the same desires, but they are led to exaggerate 
 the force of external circumstances. Thus they do not 
 contemplate the tyranny of a majority as possible, 
 because they do not contemplate the possibility of there 
 ^ Op. cit. III., pp. xi.-xii. 
 
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Equality 133 
 
 being in a democracy bodies of men with interests 
 permanently conflicting. The external circumstances 
 as regards matters of government are the same for all, 
 therefore the desires of all as regards matters of govern- 
 ment will be the same. 
 
 The love of simplicity has done vast harm to 
 English political philosophy. The question of how 
 far the interests of all men are harmonious is of fun- 
 damental importance, and yet our philosophers have 
 failed to find a satisfactory answer, because they have 
 assumed that the answer must be simple. English 
 philosophy has here forgotten its usual caution ; it has 
 rushed from one extreme to the other. At one time it 
 is ready to say that men are only kept from destroying 
 each other by fear, at an'other that true self-love and 
 social are the same. This comes of following the lead 
 of Hobbes, of prefering to assume that all men are 
 alike, to insisting that history must be called in to 
 verify a priori theories. One of the strangest instances 
 of this rushing into extremes occurred when Macaulay's 
 Westminster Reviewer changed the principle of James 
 Mill just discussed into an assertion, that the greatest 
 happiness of the individual is in the long run to be 
 obtained by pursuing the greatest happiness of the 
 aggregate. 
 
 But the pupil may be excused when the master is 
 inconsistent. Bentham, writing on international law, 
 had said that there is a difficulty as to whose happiness 
 the statesman should seek. Shall it be that of his 
 subjects or that of the whole human race ? The answer 
 is, that practically the two are to be obtained by the 
 same means. If a sovereign were to consult only his 
 
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134 Political Philosophy in England 
 
 own subjects' happiness, he might think it necessary 
 to serve other nations as he actually serves the beasts. 
 "Yet in proceeding in this career, he cannot fail always 
 to experience a certain resistance." He will find that 
 the line of action which aims at the happiness of all 
 nations is "the hne of least resistance." "For, in con- 
 clusion, the line of common utility once drawn, this 
 would be the direction towards which the conduct of 
 all nations would tend, in which their common efforts 
 would find least resistance, in which they would operate 
 with the greatest force, and in which the equilibrium, 
 once established, would be maintained with the least 
 difficulty." These words are capable of overturning 
 Bentham's theory of government. He admits that 
 what is true of international relations is true of govern- 
 mental relations. " The end of the conduct which a 
 sovereign ought to observe relative to his own subjects 
 .... ought to be the greatest happiness of the society 
 
 concerned It is the straight line — the shortest 
 
 line — the most natural line by which it is possible for 
 a sovereign to direct his course." Why so ? Because 
 " this is the end which individuals will unite in approv- 
 ing, if they approve of any\" What then becomes of 
 our denunciation of kings and oligarchs .-* Why should 
 their interests be always sinister when the line of least 
 resistance, their most natural course, is that which 
 leads to their subjects' happiness ? 
 
 The fact is that neither opinion is true. Some- 
 times our line of least resistance leads to the public 
 good, sometimes it does not. But Bentham had a 
 hankering after mathematics, vagueness was an abomi- 
 
 ' Principles of Internal . Law (Works, vol. ii., p. 536 et seg.). 
 
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Equality 1 35 
 
 nation, so he makes now one simple (and therefore 
 improbable) supposition about human nature, and noW 
 another. On the whole, the longer he lived the less 
 well he thought of mankind. The famous note, " So 
 thought Anno 1780 and 1789, not so Anno 1814, 
 J. Bentham\" illustrates this change. It was a change 
 for the worse, and James Mill was but too ready to go 
 beyond Bentham, though even James Mill was very 
 far from being consistent. 
 
 The essay by James Mill is important because it 
 marks an epoch in the history of English philosophy. 
 It was a grand attempt to found politics on empirical 
 psychology unverified by history. At present it looks 
 like a last attempt to fulfil what Hobbes proposed. 
 Its extravagancies roused a storm of opposition. But 
 it should be noticed that what was attacked was not 
 Bentham's first principle that the greatest happiness 
 of the greatest number is the one desirable end for 
 all action, but his teaching about the dissonance of 
 interests. The defeat of the Utilitarians (and they were 
 defeated) was no triumph for the_ intuitive moralists. 
 Let us take three champions of very different schools 
 who attacked Mill's work. Macaulay was apparently a 
 believer in Paley^ and shocked Mackintosh (who had 
 recanted his Utilitarianism) by ethical heresies ^ Cole- 
 ridge was "a zealous advocate for .... deeming that 
 to be just which experience has proved to be expe- 
 dient." Mr Disraeli, in a defence of our constitution 
 modelled on Burke, expressly says that it is not the 
 
 ' Principles of Internat. Law (Works, vol. i., p. 5). 
 " Essay on Westminster Reviewer^ s Defence. 
 ' Mackintosh, Hist. Eth. Phil., Note W. 
 
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136 Political Philosophy in England 
 
 Benthamite supreme rule which is objectionable, this 
 \S really conservative, but the theory of the sinister 
 interests of rulers. In fact the protest was directed 
 against any attempt to found a pure science of govern- 
 ment upon psychology. Coleridge pleads for the study 
 of history, Macaulay for the Baconian method. We 
 know now that it was this conflict of history and 
 psychology which gave birth to the completes! account 
 of the logic of social science that we have. It was 
 Macaulay's essay that roused John Mill from his trust 
 in his father's geometrical method'. From the school 
 of Coleridge he learned to value history. Then he 
 arrived at his conception of the inverse deductive 
 method'' as the method of social science, a conception 
 that has yet to be supplanted. 
 
 Some of James Mill's opponents erred in their 
 enthusiasm for history. Macaulay would have found 
 the pure Baconian method impracticable ; he unfortu- 
 nately set up Bacon's inquiry into the nature of heat as 
 a model, an inquiry which Bacon's warmest friends 
 condemn. Besides^ we have read that " That is the 
 best government which desires to make the people 
 
 happy, and knows how to make them happy Pure 
 
 democracy, and pure democracy alone, satisfies the 
 former condition of this great problem. That the 
 governors may be solicitous only for the interests of 
 the governed, it is necessary that the interests of the 
 governors and of the governed should be the same. 
 This cannot often be the case where power is entrusted 
 to one or to a few." It was not James Mill who wrote 
 
 1 J. S. Mill, Autob., p. 158. 
 ^ Logic, VI. X. 
 
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Equality 137 
 
 this, it was Macaulay\ and yet the method of reasoning 
 is scarcely Baconian. 
 
 The collapse of James Mill's theory marks- one of 
 the few great advances in English Political Philosophy. 
 Since that time we have heard little of one distribution 
 of political power as semper et ubique the only good 
 one. Those who still argue that there is but one form 
 of government not criminal are not Utilitarians — not 
 followers of Hume, but followers of Locke, Rousseau, 
 and Coleridge's friend Major Cartwright. We have 
 for the most part returned to the position of Sir 
 Thomas Smyth, " According to the nature of the 
 people, so the commonwealth is to it fit and proper'," 
 and we look for the nature of the people in its history. 
 We have got rid of the assumption of Hobbes that for 
 political purposes men may be treated as equals. It 
 was necessary that the force of education should be 
 brought into prominence, but our seventeenth century 
 philosophers attended too little to the original differ- 
 ences between men. Perhaps there is some one form 
 of government which will ultimately be found the best 
 for air communities, but any useful ideal of government 
 must be relative — relative to the people for whom we 
 propose it, relative to their history. John Mill's Essay 
 on Representative Government proposed a relative 
 ideal, an ideal for the English Constitution. James 
 Mill's Essay on Governm,ent proposed an absolute ideal. 
 We may notice that by abandoning the traditional 
 method, John Mill was brought to recognize many 
 important facts hidden from our earlier philosophers ; 
 
 ^ Essay on Mitford''s History. 
 ^ De Republic^, Anglorum, p. 1 7. 
 
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138 Political Philosophy in England 
 
 such, for instance, as the immense influence which 
 government exercises on the life of the nation outside 
 the sphere of direct governmental interference. This 
 led to a new plea for a wide distribution of power as 
 a means of education. 
 
 Of Coleridge's peculiar doctrine of representation 
 we must speak very shortly. He professed to discover 
 from history that "the idea" of English government 
 consisted in a representation of the interests of per- 
 manence and progression. The landed interest — " the 
 realty " — is the interest of permanence ; the personal 
 interest— " the personalty " — is the interest of progres- 
 sion. This "idea," whatever else it is intended to be 
 (and this is not clear, for Coleridge, in his Kantian 
 moments, declares that an idea expressed in words is 
 always a " contradiction in terms ") is also an ideal. 
 We are to strive to realize the idea in any alteration of 
 our constitution. Looking then at Coleridge's idea of 
 a state simply as a constitution to be aimed at, we find 
 it open to the gravest objections. The exact proposal 
 was that the House of Lords should be taken to 
 represent the realty, that the suffrage should be so 
 distributed that the majority of seats in the Lower 
 House should belong to the personalty, the realty 
 having a strong minority\ 
 
 (i) A representation of interests as opposed to 
 a representation of numbers (against which Coleridge 
 rages)^ comes to mean a representation of classes, for 
 the law can only take notice of obvious external dis- 
 tinctions. Surely it is bad to insist on the discord of 
 
 ^ Church and State. 
 
 ^ Table Talk, 19 Sept., 1830. 
 
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Equality 139 
 
 class interests unless it is absolutely necessary ; legal 
 recognition of the discord will aggravate it. 
 
 (2) The distinction of interests into permanent 
 and progressive is bad. There never has been a party 
 which could make standing still its whole programme. 
 We all want to move, but we want to move in many 
 different directions. The real conflict is not between 
 those who would stand still and those who would move, 
 but between those who would go this way and those 
 who would go that. 
 
 (3) Had Coleridge known more of that political 
 economy which he despised and called semi-infidel, he 
 would have seen thai to place in one class landlords, 
 tenant-farmers, and agricultural labourers, in another 
 lawyers, capitalists, artizans, and others, is a thoroughly 
 worthless distinction. Whether a man gets his income 
 from land or not is quite unimportant ; the really 
 important question is, What influences does his income 
 depend on ? Coleridge would have found that the 
 agricultural labourer and the artizan have much more 
 interest in common than the agricultural labourer and 
 the farmer. The old distinction of high and low, rich 
 and poor, goes nearer to the root of the matter than 
 that of realty and personalty. 
 
 (4) Some of the personalty have no peculiar 
 interest in progression. The conveyancer's interest is 
 more allied to permanence of a particular kind than 
 even the landowners. 
 
 (5) Some of the realty have no peculiar interest in 
 permanence. Coleridge puts together the content- 
 ment of the wealthy landowner and the obdurate- 
 ness of prejudice against change " characteristic of the 
 
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140 Political Philosophy in England 
 
 humbler tillers of the soil." But while wealthy men 
 will probably be tolerably contented whether they be 
 landowners or not, he would be a rash man who 
 trusted to the agricultural labourers, now that commu- 
 nication is easy, showing any peculiar aversion to 
 change. The fact is, Coleridge was led away by the 
 talk of the Protectionists, who made believe that farmers 
 and agricultural labourers would be injured by free 
 trade. How wrong they were is well evidenced by the 
 fact that the once familiar phrase " the landed interest " 
 has dropped out of our political vocabulary. 
 
 (6) Coleridge should have known that human 
 interests are not so simple as James Mill thought them ; 
 he was here following the school which he disliked. 
 Men do not want to vote only in their economic 
 character, they want to vote as Churchmen, as Dissen- 
 ters, as Total Abstainers, as friends of Peace at any 
 price. The line dividing the realty from the personalty 
 does not even roughly coincide with some of the most 
 important distinctions. The consequence would be 
 that in Coleridge's scheme some men, e.g. merchants, 
 would be refused votes because if they had them their 
 class would be over represented. A merchant will say 
 that he does not want to vote qua merchant but qua 
 Ritualist, and he will feel his exclusion as arbitrary. 
 Some merchants must be left out ; but why should it 
 not be his Evangelical neighbours ? Unless some such 
 arbitrary lines are drawn, the results of Coleridge's 
 plan would coincide with those of a representation of 
 numbers. 
 
 A consideration of the complexity of interests at 
 greater length would bring us to the conclusion that, in 
 
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Equality 141 
 
 a community fully conscious of the way in which it is 
 governed, no system of representation can be stable 
 which does not proceed on few and simple rules. 
 Every addition to the number of rules leads to distinc- 
 tions which must be felt as arbitrary. All changes in 
 our representative system which are to be final or 
 successful will be movements towards greater simplicity, 
 not necessarily towards greater simplicity in the 
 machinery of election, but towards greater simplicity in 
 the distribution of voting power. We shall move 
 towards the scheme advocated by John Mill, not 
 towards the scheme advocated by Coleridge. It might 
 be different could we label men as belonging to dif- 
 ferent " interests," but this becomes more and more 
 difficult every day. 
 
 Harrington started an interesting line of speculation 
 when he said that the balance of power depends on the 
 balance of property, and it is a pity that this has not 
 been followed up. His own theory was far too simple, 
 he thought monarchy in England had become impos- 
 sible because landed property was so widely distributed ; 
 it proved otherwise. Still we may say that any change 
 in the balance of power which is not brought about by 
 force, and which is not a restoration, will tend to place 
 the balance of power in the same hands as the balance 
 of property. We can say also that equality of political 
 power tends to produce equality of property, for where 
 there are no hereditary distinctions one motive for 
 saving is absent. But unfortunately we have no specu- 
 lations on this subject. 
 
 In the early days of our political philosophy, the 
 right to property was not made the matter of such 
 
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142 Political Philosophy in England 
 
 frequent dispute as the right to rule. There was less 
 difference between practical men as to the former right. 
 But even in the days of Hobbes there were levellers 
 abroad, who "were casting how to share the land 
 among the godly, meaning themselves, and such others 
 as they pleased \" They looked for the speedy estab- 
 lishment of the fifth monarchy ; there was among them 
 that religious enthusiasm which might have made 
 socialism possible. Even Harrington, who was no 
 enthusiast, would set a limit to property in the interests 
 of popular government. Hobbes of course could defend 
 existing property law, as he could defend all existing 
 law ; we have consented to it. The great continental 
 jurists also made consent, or occupation and consent, 
 the foundation of a right to property. Locke however 
 tried to find a title to property independent of consent, 
 for he wished to insist that this was one of our rights 
 which had not been surrendered to the legislative body. 
 He deduces it from the common right of all men to the 
 gifts of God, and the exclusive right of every man to 
 his own labour. 
 
 The gifts of God to be used must be consumed, 
 and consumption involves appropriation I Things 
 must be considered appropriated when labour has been 
 spent upon them. He shows clearly that much of the 
 value of wealth is due to labour, and holds that the 
 propriety of labour overbalances the community of land. 
 Hallam contrasts this "excellent chapter" most favor- 
 ably with the teaching of Grotius and Puffendorf, and 
 the " puerile rant of Rousseau I" " That property owes 
 
 ^ Hobbes, Op. cit., vi. 365. ^ Civ. Gov., 11. 25-51. 
 
 ' Hist. Lit., IV. iv. 
 
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Equality 143 
 
 its origin to occupancy accompanied with labour is," 
 he thinlcs, "now generally admitted." What property 
 owes its origin to is one question, what is its justifica- 
 tion is another. These questions Locke, in the manner 
 of his age, confounds ; but he certainly meant to give 
 not only an historical account, but a deduction of right. 
 He thinks that in former times, when there was enough 
 for all, " right and conveniency went together ; " before 
 the invention of money (the influence of which Locke 
 always exaggerated) men had no temptation to enlarge 
 their possessions beyond their wants. But (and here 
 he abandons his first theory) since the invention of 
 money, " it is plain that men have agreed to a dispro- 
 portionate and unequal possession of the earth ; they 
 having, by a tacit and voluntary consent, found out 
 a way how a man may fairly possess more land than he 
 himself can use the product of." So after all, Locke 
 rests the natural right to property as it at present exists 
 on a tacit consent, evidenced by the use of money. 
 
 Dr Rutherforth, who belonged to the English 
 Grotian school, criticized Locke's theory with justice'. 
 He thinks that even if Locke can show that labour has 
 a title to -^^ of the value of property, there is still 
 a xo^ part to which labour has no right ; it comes from 
 nature. He lays stress on Locke's falling back upon 
 consent, and argues that consent, evidenced by occupa- 
 tion, is the real foundation of the right. Thus both 
 Locke and the Grotians, in the last resort, rely on 
 a title by tacit consent. 
 
 Such was the state of the argument when Rousseau 
 began his tirade against inequality. He would not 
 ' Institutes, i. iii. lo. 
 
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144 Political Philosophy in England 
 
 recommend a return to natural equality ; he only wishes 
 for a state in which no man is so rich as to be able to 
 buy another's labour, no man so poor as to be bought ^ 
 Still, if "buying" mean "hiring,'' this is a long step 
 towards levelling. He allows that labour may give 
 a title to property, but it must be labour, not a mere 
 marking out of the ground. This argument has been 
 repeated by Paley^ Though Rousseau's historical 
 account is far inferior to Locke's, he could have driven 
 the latter into very awkward positions. Locke's argu- 
 ment seems only just as long as there is " common " to 
 be reclaimed. What ! are we " promiscuously born to 
 all the same advantages of nature," only to find all 
 nature's gifts engrossed ? Why is a tacit consent 
 enough in this case, when the social compact requires 
 " express promise and contract " ? " Men have agreed 
 to a disproportionate and unequal possession of the 
 earth." What men ? Do the promises of parents bind 
 their children ? Locke says they do not. Let us make 
 the consent a reality. Enough of fictions. Let the 
 landowners shew that they have laboured, or that we 
 have consented. 
 
 Meanwhile Hume produces another justification of 
 property, its utility. But Hume allows that " wherever 
 we depart from...equahty we rob the poor of more 
 satisfaction than we add to the rich^" The rule of 
 equality is useful, and has been shewn by history to be 
 not wholly impracticable ; but perfect equality we can- 
 not have. " Render possessions ever so equal, men's 
 different degrees of art, care, and industry will imme- 
 
 ^ Soc. Cont., II. xi. ^ Mor. Phil., iii. iv. 
 
 ' Inquiry... Morals, in. i. 
 
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Equality 145 
 
 diately break that equality. Or if you check these 
 virtues, you reduce society to the most extreme indi- 
 gence." This is the Hne of defence behind which Paley 
 and Bentham took their stand. 
 
 Then Hume asks that question which his opponents 
 find it so hard to answer. What is property ? Now if 
 Locke is not to fall into pure Hobbism, he must find 
 some criterion by which we may judge any scheme of 
 property law. What ought to be a man's property ? 
 Shall we allow devise, bequest, inheritance ? If so, let 
 us put to Locke the question which Locke put to 
 Filmer. Who is heir' ? We know who is heir accord- 
 ing to English law, but who is heir according to the 
 law of nature deduced from the ideas of God, and of 
 ourselves "i Here let us quote Locke himself " There 
 being no law of nature, nor positive law of God, that 
 determines which is the right heir''."... No law of nature 
 on so important a point ! Then is the law of nature 
 our sole criterion of right and wrong ? How are we to 
 justify English property law, since the law of nature 
 will not answer the very simplest question as to the 
 extent of the natural rights of property ? There is an 
 escape; we may say with Locke that " the public good " 
 {i.e. pleasure) "is. the rule and measure of all law 
 making ; " then we are at one with Hume. 
 
 Paley followed Hume closely in his justification of 
 property, but he brought into relief the weak side of 
 the Utilitarian argument. The institution of property 
 is, he thinks, "paradoxical and unnatural." The fable 
 of the pigeons seems to lead to levelling principles. 
 Inequality is admitted to be an evil, but it is a neces- 
 ^ Civ. Gov., I. 106. ^ Civ. Gov., ii. i. 
 
 M. 10 
 
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146 Political Philosophy in England 
 
 sary evil ; it flows from rules by which men are incited 
 to industry. " If there be any great inequality uncon- 
 nected with this origin it ought to be corrected \" 
 
 Bentham agrees. There is 2l. prima facie argument 
 in favour of equality. On this subject he tries to be 
 very precise. H is theory as set forth in the Principles 
 of the Civil Code^, and more accurately in the Panno- 
 mial Fragments^, is that if we go on adding to a man's 
 wealth, to the sum of material objects of desire of 
 which he has the use, each increment of wealth pro- 
 duces an increment of pleasure, but the pleasure never 
 increases so rapidly as the wealth. It follows that the 
 distribution of a given amount of wealth, which pro- 
 duces most pleasure, is an equal distribution. This 
 may be looked upon as a cardinal doctrine of Utili- 
 tarianism, for Hume, Paley, Bentham, and Mill are 
 agreed upon it. But none of these teachers recommend 
 any very serious measures for obtaining this equality. 
 Before we can estimate their reasons for narrowing the 
 sphere of this doctrine we may see what attempts have 
 been made to obtain an equation connecting wealth- 
 produced happiness with wealth. Now we have two 
 probably independent attempts to perform this feat. 
 Bentham says, "It will even be matter of doubt whether 
 ten thousand times the wealth will in general bring with 
 it twice the happiness*." Paley says that it ought to 
 be assumed that ten persons possessing the means of 
 healthy subsistence possess a greater amount of happi- 
 ness than five people however wealthy^ This agree- 
 ment is striking. The wealth-produced happiness of 
 
 ' Civ. Gov., III. 2. ^ Works, i. 304. ' m. 228. 
 
 <* III. -2 29. ^ VI. xi. 
 
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Equality 147 
 
 the richest is never twice the wealth-produced happiness 
 of a man who has the means of a healthy subsistence. 
 How large an admission of levelHng principles this is 
 can easily be shown in a rough way. Let us take 
 ^100 per annum as a means of a healthy subsistence. 
 There are in this country 8500 incomes of ^5000 and 
 upwards ; these, if cut up into incomes of ^100, would 
 produce more than twenty-five times as much happiness 
 as they now do. 
 
 What has Paley got to say against this strong case ? 
 According to him the principal advantages of such 
 a property system as ours are that : (i) It increases the 
 produce of the earth ; (2) It preserves the produce of 
 the earth to maturity; (3) It prevents contests; (4) It 
 improves the conveniency of living, by permitting a 
 division of labour and by appropriating to the artist the 
 benefit of his discovery. These may all be summed up 
 in what Hume says in the passage quoted from him. 
 To which Hume adds that equality of possessions 
 weakens authority by leading to equality of power. 
 Bentham's defence is by far the most powerful, he 
 insists vigorously on the supreme importance of security. 
 The evils which would follow from constant redistribu- 
 tions (alarm, danger, the extinction of industry) would 
 throw the good of an equal distribution into the shade. 
 " Equality ought not to be favoured except in cases 
 where it will not injure security ; where it does not 
 disturb expectations to which the laws have given 
 birth; where it does not derange the actually exist- 
 ing distribution." Bentham's Essay on the Levelling 
 System contains all these arguments repeated in their 
 most telling form. 
 
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148 Political Philosophy in England 
 
 But what is remarkable is that we have not yet 
 come across the Mahhusian argument. I would not 
 say that Bentham and Paley fail to resist the enormous 
 prejudication which they have raised in favour of 
 equality, but on their own principles it would have 
 been difficult to reject a proposal made by Tom 
 Paine. 
 
 Paine was the most popular of English demagogues, 
 and justly so, for he came out of his controversy with 
 Burke (who was hampered by the conventional theory) 
 without serious loss. This being so, it surprises us to 
 find that Paine was but little of a socialist. Indeed, 
 socialism was not a product of 1789, but rather of 1830 
 and 1848. Paine was a leveller, not a socialist, and 
 a comparatively moderate leveller. He would but 
 establish a national fund out of which ^15 should be 
 paid to everyone on arriving at the age of twenty-one, 
 and ^10 per annum to every person over fifty years of 
 age "to enable them to live without wretchedness, and 
 go decently out of the world." He considers agrarian 
 laws unjust, for the greater part of the value of land is 
 due to labour ; still there is some portion of the value 
 due to nature, and on this the tax should be thrown^ 
 Locke's premises lead to this, if we exclude title by 
 consent. 
 
 What we may ask would Paine's scheme necessitate ? 
 Supposing our present population to remain constant, 
 a tax of about 6 per cent, on all incomes over ;^ioo 
 would suffice. Now supposing this scheme was intro- 
 duced with great caution, supposing that it was only to 
 come into force after the lapse of a generation, I think 
 ^ Agrarian Justice. 
 
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Equality 149 
 
 Bentham and Paley would be put to it to find objections, 
 if they chose to abide by their principle. 
 
 Of course such a tax would diminish wealth. But 
 all that Bentham and Paley can say is that a man will 
 not work for others as he works for himself The rest 
 of Paley's objections need not apply ; there need be no 
 insecurity, no uncertainty, no contests. How much the 
 motives to industry would be diminished by such a tax 
 we can scarcely 'guess, but it would need a perfectly 
 preposterous assumption to show that wealth would be 
 so much diminished, that the great advantages of an 
 equal distribution would be overbalanced. It is all 
 very well to say that the rich would consume their 
 wealth instead of saving it, and thus there would be no 
 wages, demand for commodities not being demand for 
 labour ; but we must not let the phrases of economists 
 drive us into absurdities. What way is there in which 
 the rich can use by far the greater part of their wealth 
 without paying wages, or inducing someone else to pay 
 wages ? One and one only, they can waste their wealth 
 without obtaining any enjoyment from it. 
 
 Against socialism, with its attendant uncertainty, 
 Paley and Bentham have a very good defence, a 
 defence which will be sufficient until some considerable 
 change in human nature has taken place. But to con- 
 siderable steps towards levelling, to taxing the rich for 
 the relief of the poor, they cannot fairly object. As to 
 Paley, one chapter in his work is the best apology for 
 levelling ever made\ He holds that the improvement 
 {i.e. increase) of population is "the object which ought, 
 in all countries, to be aimed at in preference to every 
 
 ^ Works, VI. xi. 
 
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150 Political Philosophy in England 
 
 other political purpose whatsoever." He devotes a 
 chapter to suggesting means to this end, he actually 
 goes out of his way to revive the moribund fallacy of 
 the balance of trade, because he thinks that the 
 "accession of money" increases population, he would 
 add to our species by adding to our specie. . Paley's 
 principles justified Pitt in saying, " Let us make relief 
 in cases where there are a number of children a matter 
 of right and honour, not of opprobrium\" Pitt framed 
 a bill providing that people should be paid for bringing 
 children into the world. The bill was withdrawn, 
 thanks, it is said, to the criticism of it which Bentham 
 sent to Pitt'. Bentham's editor, Dumont, gives to 
 Bentham the credit of anticipating Malthus', but he is 
 scarcely warranted in so doing; indeed, though Bentham 
 did not think with Paley that legislative interferences 
 are required in order to make the population increase 
 sufficiently quickly, he never (as far as I know) used 
 the Malthusian argument. 
 
 If we compare this chapter of Paley's with the 
 ordinary talk of our own time, we find how completely 
 new the most popular modern justification of property 
 is. The subject of population is one on which Plato 
 and Aristotle had speculated, but it was strangely 
 neglected in England. Malthus really drew attention 
 to a class of facts which had been ignored by all pre- 
 ceding English theorists. Nor did he assume his 
 principles as convenient hypotheses ; he had a stronger 
 sense of the value of history than has been granted to 
 most of our philosophers. He sought to prove from 
 
 ^ Quoted by Ricardo (^Pol. Ec, ch. v.). 
 
 ^ Works, I., Preface, 70. viii. 440. ^ in. 73. 
 
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Equality 1 5 1 
 
 history that the " positive checks " on population have 
 been in constant operation. We have here only to 
 inquire how much he added to the Utilitarian defence 
 of a property law such as ours. It must be allowed 
 that if the increase of population was due to causes 
 over which we have no control, Paley and Bentham 
 would lead us to some vigorous scheme of levelling. 
 In Paley's case this is obvious. If to increase the 
 population be the first and foremost duty of a states- 
 man, Malthus might well ask Paley how he could spend 
 his time in devising petty changes in our laws when 
 Paine had recommended so much more efficient a route 
 to the desired end. "Accept Paine's advice," he might 
 say, " and you will have your heart's desire : the coun- 
 try will swarm with men and women." 
 
 Modern socialism has always seen in Malthus its 
 most formidable enemy, and Malthus' first opponents 
 found no way to answer him save by an audacious 
 denial of the fact that population was increasing ^ The 
 fact is that there was a strong superstition which 
 Malthus had to resist. Providence, it was thought, 
 will take care that population does not increase too fast. 
 Godwin held that " there is a principle in human society 
 by which population is perpetually kept down to the 
 level of the means of subsistence^" Yes, said Malthus, 
 there is such a principle, the principle of starvation. 
 
 Malthus showed that to insure to every person the 
 means of subsistence would cause a rapid increase of 
 population. But this was not enough. It might be 
 argued that every man would still have as good a 
 
 ^ E.g. Cobbett, Pol. Regist., lo April, 1823. 
 ^ Pol. Justice, VIII. iii. 
 
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152 Political Philosophy in England 
 
 chance of extracting a livelihood from nature as had 
 his fathers. But here comes in Malthus' principle that 
 population tends to increase faster than the means of 
 subsistence, which means this, that as long as our 
 means of coercing nature remain what they are, we can 
 only extort an addition to our supply of food by a more 
 than proportionate addition to our labour. Now here 
 we have a really new argument against levelling, an 
 argument which Malthus and Ricardo made too much 
 of when they pleaded for the abolition of the poor laws, 
 but an important addition to the armoury of Bentham 
 and Paley. I do not however believe that even with 
 this addition Bentham and Paley would be safe. It 
 might be said that even allowing for an immense 
 increase of population, a great decrease in the incite- 
 ments to industry, and full force to the law of diminish- 
 ing returns, the supposition that the richest man has 
 never twice as much wealth-produced happiness as the 
 poorest man, leaves an ample margin for levelling 
 principles. It might further be urged that there are 
 pleasures to which the law of diminishing returns does 
 not apply, such are the pleasures of family society. 
 Again, Godwin founds his plea for equality, that plea 
 which occasioned the reply of " the Arch-Priest of 
 Famine " (as Godwin's son-in-law called Malthus), not 
 so much on the desirability of lessening the pains of 
 physical want as on the desirability of getting rid of 
 " the spirit of oppression, the spirit of servility, and the 
 spirit of fraud," which are " the immediate growth of 
 the present administration of property." On the other 
 hand, Malthus, by showing how fast population might 
 increase if a bounty was given, did show that redis- 
 
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Equality 153 
 
 tribution must be frequent, and thus added new force 
 to Bentham's argument against insecurity. 
 
 It is doubtful whether Paley and Bentham could 
 
 logically defend such a property law as ours without 
 
 modifying what they say about the connection between 
 
 wealth and happiness. I may not enter into verbal 
 
 criticism, but neither philosopher sufficiently recognized 
 
 the possibility of a man's wealth-produced happiness 
 
 being a minus quantity. When Bentham says that ten 
 
 thousand times the wealth does not bring twice the 
 
 happiness, he seems to assume that the wealth-produced 
 
 happiness of a man who has no wealth is zero ; but this 
 
 is untrue, it is a very large negative quantity. Let 
 
 us first attend merely to the happiness which results 
 
 from the use of " material objects having a value in 
 
 exchange," or "wealth-happiness." If we decrease a 
 
 man's wealthjbelow a certain point, his wealth-happiness 
 
 becomes a minus quantity, he suffers the pain of want. 
 
 Further, let us remark that Paley much underrates the 
 
 connection between wealth and happiness in general ; 
 
 a certain minimum of wealth is necessary as a condition 
 
 for any happiness. The pain of starvation excludes all 
 
 or nearly all pleasures. From the consideration of the 
 
 possibility of a man's wealth-happiness being a minus 
 
 quantity, we may come to think that though ten men 
 
 with ^1000 a year are together far happier than one 
 
 man with ^10,000, yet one man with ^100 per annum 
 
 is happier than ten men who have but ;^io a piece to 
 
 last them through the year. But does not this add 
 
 new force to the argument for equality ? Yes, if we 
 
 consider only persons in esse. No, if we consider 
 
 persons in posse. No, if our scheme will ultimately 
 
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154 Political Philosophy in England 
 
 increase the number of those whose wealth-happiness 
 is negative. Suppose a UtiKtarian had an annuity of 
 ^looo and there were nine existing persons who had 
 nothing, we should go even further than Paley in 
 recommending an equal distribution ; it will save much 
 suffering. But suppose a Utilitarian has an annuity of 
 ^looo and no children, we should say that he ought 
 perhaps to wish for nine children who might share his 
 wealth, but not for 99, certainly not for 999. If how- 
 ever we do not admit the possibility of wealth-happiness 
 being negative, if we hold by the letter of what Bentham 
 and Paley have said, we must admit that 1000 persons 
 with £\. per annum a-piece are together more than 
 fifty times as happy as ten persons with £100 per 
 annum a-piece. And this, when we consider that some 
 wealth is a necessary condition for almost every class 
 of pleasures, seems absurd. » 
 
 The Utilitarian can perhaps scarcely get to any 
 precise theories on this subject, he can only point to 
 the quarters from which the good and evil effects of 
 measures promoting equality will come. The fact that 
 there is doubt on such subjects as the connection 
 between wealth and happiness, is a terribly strong 
 argument against Bentham's scheme of a political 
 arithmetic. But still we know that there is a general 
 argument against inequality, an argument valid in the 
 absence of other Utilitarian arguments, an argument 
 admitted every time that our Court of Chancery says 
 that equality is equity. This argument would be one 
 of great force in any discussion of our present law of 
 inheritance. On the other hand, we know whence the 
 evils of a levelling scheme will flow. 
 
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Equality 1 55 
 
 Unsatisfactory principles no doubt to the believer 
 in neat theories, but where, let us ask shall we look for 
 better ? Locke will not help us, for, though he can 
 deduce a right to property from the law of nature, he 
 cannot tell us whether that right includes the right 
 of inheritance. Hutcheson will not help us, for he 
 becomes Utilitarian. Our English moralists will not 
 help us, for since the writers on the law of nature gave 
 way before the Scotch psychologists, scarcely one anti- 
 Utilitarian moralist has treated of politics. Even 
 Dr Whewell will not help us, for he gives no criterion 
 by which we may judge different schemes of property 
 law, and Dr Whewell is one of the few English moralists 
 who have attended to the morality of law. 
 
 One refuge remains. There is Kant, who to some 
 extent formulated the doctrines of " natural jurispru- 
 dence." Here we have his account of what ought to be 
 property. " Das aiissere Meine ist dasjenige ausser 
 mir, an dessen mir beliebigem Gebrauch mich zu 
 hindern, Lasion (Abbruch an meiner Freiheit die mit 
 der Freiheit von Jedermann nach einem allgemeinem 
 Gesetze zusammen bestehen kann) sein wiirde'." Now 
 how could we use this in constructing a law of property ? 
 Kant admits testamentary power ; but what testamen- 
 tary power ? It is surely evident that if the law of 
 equal freedom allows of bequest at all, it allows of 
 settlements in perpetuity. 
 
 Let us once more refer to Coleridge. " Now," he 
 
 says, speaking of this very doctrine, "it is impossible 
 
 to deduce the right of property from pure reason'." 
 
 Then follows this note — " I mean, practically and with 
 
 ^ Rechtslehre. ^ The Friend, Essay iv. 
 
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156 Political Philosophy in England 
 
 the inequalities inseparable from the actual existence of 
 property, abstractedly, the right of property is deducible 
 from the free agency of man. If to act freely be a 
 right, a sphere of agency is so too." I suppose this 
 "practically" and "abstractedly" means that we can 
 from the fact of free will deduce that there ought to be 
 some proprietary rights, but that we must appeal to- 
 expediency to know what rights, for (as Coleridge has 
 just told us) whatever is expedient he deems to be just. 
 
 Coleridge was a Utilitarian in politics because he 
 was a Conservative. He escaped out of Kant's system 
 just in time, for what would a supporter of " the realty" 
 have said to Mr Spencer's use of the Kantian principle 
 as destructive of a right to property in land ? 
 
 A distinction between property in land and property 
 in other things has been common. It has been sup- 
 posed that a justification good for the latter is not good 
 for the former. This is due partly to the distinction 
 between mobilia and immobilia which every code 
 naturally makes, partly to the distinction between realty 
 and personalty, the result of the conflict in this country 
 between feudalism and commercialism, above all to the 
 superstition that nature helps agriculture more than 
 any other industry. This superstition is ancient, in 
 modern times it formed the foundation of the physio- 
 cratic economy, it hampered Adam Smith, it crops up 
 where one least expects it. 
 
 The physiocrats used this doctrine to account for 
 the fact of rent. Thus Paine could say that rent is not 
 due to labour or capital, but to nature ; therefore the 
 levelling tax should be a rent-charge. This was correct 
 on Locke's principles, for had not Locke admitted that 
 
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Equality 1 57 
 
 a part of the produce of land is due to nature, and must 
 not this part be the rent ? When Bastiat came to deal 
 with Paine's successors, with all his cleverness he made 
 one unfortunate admission. If Ricardo's theory be 
 true, then property in land is unjust. Ricardo's theory 
 most certainly is true, all Bastiat's ingenuity notwith- 
 standing. Here is the difficulty of admitting that 
 labour alone gives a title to property. Bastiat can only 
 escape by playing upon the word "service." 
 
 Next we will take Mr Spencer's deductions from 
 the law of equal liberty \ He says : " Given a race of 
 beings having like claims to pursue the objects of their 
 desires, given a world adapted to the gratification of 
 those desires, a world into which such beings are 
 similarly born, and it unavoidably follows that they 
 
 have equal rights to the use of this world It is 
 
 manifest that no one or part of them may use the earth 
 in such a way as to prevent others from similarly using 
 it ; seeing that to do this is to assume greater freedom 
 than the rest, and consequently to break the law." This 
 certainly seems a correct deduction from the law of 
 equal freedom, and Kant must give up the right to 
 landed property. But cannot we go further ? Let us 
 change the argument. Given a race of beings having 
 like claims to pursue the objects of their desires, given 
 an apple adapted to the gratification of these desires, 
 an apple near which such beings are similarly born, 
 and it unavoidably follows that they have equal rights 
 
 to that apple It is manifest that no one or part of 
 
 them may eat that apple in such a way as to prevent 
 
 others from similarly eating it ; seeing that to do this 
 
 1 Soc. Stat, X. and xi. 
 
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158 Political Philosophy in England 
 
 is to assume greater freedom than the rest, and conse- 
 quently to break the law. 
 
 Mr Spencer would have the society constitute itself 
 the supreme landlord. He argues that the law of equal 
 freedom is not broken in this case, for every man has 
 an equal power of becoming tenant. Certainly every 
 man would have an equal power of becoming tenant if 
 every man could offer an equal rent, but what of this ? 
 Every man has now an equal power of becoming a 
 landlord, if every man can offer an equal price. 
 
 Then there comes this re'ductio dd absurdum of 
 " landlordism." If one man may be the rightful owner 
 of any part of the earth's surface, some few rtien might 
 have a right to exclude all their fellows from the world; 
 But is it not obvious that we can also say that if one 
 man has an exclusive right to any one particle of 
 matter, some few men may have a right to all matter. 
 
 But these arguments can scarcely be serious. If 
 the law of equal freedom condemns land-ownerism it 
 condemns coat-ownerism also. Touch not, taste not, 
 handle not, make haste to leave this world lest you 
 infringe the equal rights of others ; this is the law of 
 equal freedom. 
 
 But then there is an apparently solid argument. 
 " We daily deny landlordism by our legislation." The 
 railway and canal acts are appealed to as evidence of 
 this. Now Mr Spencer holds a leasehold tenure to be 
 just, a freehold tenure to be unjust. He appeals to 
 popular opinion as supporting him. Here we can 
 apply a really crucial test. If popular opinion as 
 evidenced by Acts of Parliament makes any difference 
 between wrongful and rightful tenures, these Acts will 
 
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Equality 1 59 
 
 treat the leaseholder in a different way from that in 
 which they treat the freeholder. Do they do so ? 
 Certainly not : a company has just the same power of 
 compelling a tenant for years at a competition rent to 
 sell his interest, that it has of forcing a tenant in fee to 
 sell his estate. If we deny "landlordism" we deny 
 land-tenantism also. The reason why land is more 
 often made the subject of compulsory sale than are 
 other things is obvious, and has nothing to do with the 
 law of equal freedom. In case of war our government 
 might very likely force shipowners to sell their steam- 
 ships ; it would deny shipownerism, if ships were 
 wanted for public purposes, just as it denies landlordism 
 and land-tenantism when land is wanted for a railway. 
 But Coleridge also drew a distinction between 
 property in land and property in other things. "It is 
 declared by the spiritual history of our laws that the 
 possession of a property not connected with especial 
 duties, a property not fiduciary and official, but arbitrary 
 and unconditional, was in the sight of our forefathers 
 the brand of a Jew and an alien ; not the distinction, 
 nor the right, nor the honour, of an English baron or 
 gentleman^" This is the Idea of our law of real 
 property. Towards the Idea, "the line of evolution, 
 
 however sinuous, has still tended sometimes with, 
 
 sometimes without, not seldom against, the intention of 
 the individual actors, but always as if a power greater 
 and better than the men themselves had intended it for 
 them^" The Idea is not only the point towards which 
 evolution has tended, but it is also an ideal, an object 
 to be aimed at by us. Now whether property in land 
 ' Church and State, p. 49. ^ p. 35 
 
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i6o Political Philosophy in England 
 
 ought or ought not to be absolute and unconditional 
 may be an open question ; but if the spiritual history 
 of our laws declares that a fiduciary and official property 
 in land is the point to which evolution has tended, the 
 spiritual history of our laws must have some little 
 difficulty in accounting for facts. Indeed, it must state 
 what is, temporally speaking, exactly the reverse of the 
 truth. There has been through long centuries a 
 tendency at work making the law of realty more and 
 more like the law of personalty. . True, we still say 
 that no subject can be the supreme lord of land, but 
 what is now the merest fiction was once a great reality, 
 and that reality disappeared bit by bit. Little by little 
 the power of alienation and the power of testamentary 
 disposition were won. When the legislature would not 
 move fast enough popular opinion permitted the judges 
 to evade the very words of statutes by all manner of 
 fictions, fines, recoveries, and so forth. Surely these 
 powers of disposition are the signs of absolute as 
 opposed to fiduciary possession. Take again the 
 extremely gradual extinction of manorial rights. These 
 were " connected with especial duties," but they have 
 disappeared. Coleridge sometimes asserts that the 
 idea of property in land is a new one. This also is 
 untrue. It is an idea which has very slowly evolved 
 itself through the course of our history. Nor could 
 Coleridge say that it appeared during the reign of the 
 false philosophy. No, it came in during the ages 
 which he loved. The great statute which converted 
 all tenures into free and common soccage was older 
 than the days of Locke. From the Statute of Fines 
 to the last Land Transfer Act there has been one 
 
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Equality i6i 
 
 steady tendency in all legislation on the subject, a 
 tendency to assimilate the law of real property to the 
 law of personal property. It may be that this tendency 
 has been from good to bad. It is open for Coleridge 
 to say that this has been the case ; but it should be 
 admitted by all that if property in land is to be made 
 less a matter of commerce than property in other things 
 the tendency of centuries must be reversed. 
 
 Mill prophesies that it will certainly not be much 
 longer tolerated that agriculture should be carried on 
 (as Coleridge phrases it) on the same principles 'as trade'. 
 This may be so, but this prophecy must be founded 
 on other grounds than a history of our law, however 
 "spiritual." 
 
 To consider the now common arguments for making 
 a distinction between property in land and property 
 in other things would be to transgress our limits by 
 entering on post-Coleridgean controversy. But it may 
 be remarked, that if we rigorously exclude the old 
 physiocratic fallacy, and perceive that the law of equal 
 freedom cannot make any distinction until it is supple- 
 mented by some doctrine as to the way in which 
 restraint must be measured, the controversy is not one 
 which can be decided by a bare appeal to first principles, 
 but requires much economic and historical discussion. 
 
 ^ Essay on Coleridge. 
 
 M. 
 
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THE LAW OF REAL PROPERTY\ 
 
 It may be hoped that the reform of our land laws 
 will at some not distant day come within the sphere of 
 practical politics. Already most Liberals acknowledge 
 that there is, or may be, a "Land Question," though 
 they would freely admit that at present they are not 
 prepared with an answer to, or even with a very precise 
 statement of, that question. Nor is there necessarily 
 anything unreasonable in this somewhat vague dis- 
 satisfaction. Many an invalid knows that he is unwell 
 without being able to give a name to his ailment, and 
 it certainly is not surprising that those whom lawyers 
 call laymen should have no very definite opinions about 
 real property law. With all their love for politics and 
 public affairs, Englishmen are easily content with 
 knowing nothing of the ordinary civil law under which 
 they live. So long as it is not scandalously unjust 
 they are satisfied, and for the rest will trust to 
 Providence and the family solicitor. And if this be 
 the case with the more modern and intelligible portions 
 of the law, still truer is it of the inscrutable mysteries 
 of real property. How could it be otherwise ? How 
 is the ordinary man to become acquainted with them ? 
 If he consult his "Blackstone" he straightway finds 
 himself in the Middle Ages, or, what is far worse, in a 
 theory of the Middle Ages, concocted by the lawyers 
 ■^ Westminster Review, 1879. 
 
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The Law of Real Property 163 
 
 of the last century. He has to learn a new language, 
 and to acquire wholly new habits of thinking about 
 the most ordinary transactions. He is perplexed by 
 ancient statutes, and troubled with "the learning of 
 feuds." All is to him unreal and unreasonable, and in 
 all probability he decides not to waste his time over 
 matters which, after all, do not concern him very 
 greatly. As to his own affairs, there is the family 
 solicitor, while as to the affairs of other people, they 
 are, by supposition, no affair of his. 
 
 Natural as all this is, it is none the less to be 
 regretted. For we move in a vicious circle. The 
 people cares not to understand its own laws, because 
 these laws are obscure and antiquated ; the laws are 
 obscure and antiquated because those who would be 
 advantaged by their reform know nothing about them. 
 And as our Constitution grows more democratic it 
 becomes ever more important that our civil law should 
 be widely known. Little will now be done by Parlia- 
 ment to which it is not urged from without, and in 
 these days, when there are always many excellent and 
 exciting electioneering cries, many questions about 
 which it is easy to make a stir, no Minister could 
 afford to devote Session after Session to measures, 
 however indisputably useful, for which there was no 
 popular demand. It concerns Liberals in particular to 
 see that nothing is lost by those successive extensions 
 of the suffrage which they have advocated. But some- 
 thing will assuredly be lost unless the electoral body 
 can be persuaded to interest itself in our everyday civil 
 law. Something will be lost if the spirit of law reform 
 which was fairly awakened in Parliament some half 
 
 II — 2 
 
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164 The Law of Real Property 
 
 century ago be allowed to languish before one tithe of 
 its appointed work is accomplished. 
 
 It is hard to believe that there can be any reform 
 more necessary than a reform of our land laws, and 
 yet it is a reform which might easily be accomplished 
 were popular attention once fixed on the work. It is 
 really to no one's interest that the law should remain 
 what it is. Opposition, of course, there would be, for 
 there are some whose honour demands that they should 
 resist every change ; but their honour would be easily 
 satisfied, their resistance official and half-hearted. 
 There have been times when a vigorous and virulent 
 opposition to law reform was to be expected from 
 lawyers. But lawyers have apparently grown wiser. 
 It has become plain, from many proofs, that they have 
 no real interest in maintaining a cumbersome and 
 clumsy system. Here, for instance, is Mr Joshua 
 Williams, the professor appointed to instruct law 
 students in the hidden wisdom of real property law, 
 the writer of books from which hundreds of lawyers 
 have learnt all the real property law they know. He 
 lectures on the Seisin of the Freehold. Now, when a 
 very learned professor of the laws undertakes to lecture 
 on so dark and mysterious a theme, we are wont to 
 expect from him some of those bravura passages about 
 ancestral wisdom, and the perfection of reason which 
 Blackstone so brilliantly executed before crowded and 
 admiring audiences. But Mr Williams disappoints 
 us. In his first paragraph^ he states his belief that 
 some of the most remarkable of our laws are ' ' absolutely 
 worthless," while "others are worse than worthless; 
 ' The Seisin of the Freehold, p. i. 
 
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The Law of Real Property 165 
 
 they are absurd and injurious " ; and in his last para- 
 graph' he modestly opines that he has made good this 
 his first thesis. Now, when those who are set to teach 
 the youth hold such language as this, there are but 
 two courses open to us — to silence the professors, or 
 to reform the laws. 
 
 But while it is impossible to defend the law as it 
 at present stands, it is only too possible for reformers 
 to differ among themselves as to what changes should 
 be made. There are many who would look on no 
 improvement of the law as final which did not do 
 something towards securing a more equal distribution 
 of landed property, towards lessening the power and 
 influence of the land-owning aristocracy. There are 
 others who would move in this direction with reluctance, 
 or at least with much hesitation. Now it is to be 
 feared lest a difference of opinion about the end of the 
 journey may prevent our taking steps which all must 
 allow tend in the right direction. For it seems to us 
 that before any further advance can profitably be made, 
 it is quite necessary that the law should be much 
 simplified. Here is something on which we might 
 agree at the present moment, and a measure which can 
 in no way prejudice the cause of any further reforms. 
 Unless this work be done we shall have more of 
 that tinkering of antiquated law of which the disastrous 
 results are daily seen, — fresh gins and pitfalls for the un- 
 wary. The new patch will be put upon the old garment 
 with the result which we have been taught to expect. 
 
 But though the reforms at present most necessary 
 are chiefly reforms tending to simplification ; though 
 ^ The Seisin of the Freehold, p. 202. 
 
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1 66 The Law of Real Property 
 
 they imply no alteration in the habits of English society, 
 no interference with the manners and customs of land- 
 lords, farmers, and labourers ; though they might leave 
 the agricultural system which Lord Hartington has 
 lately attacked, and Lord Beaconsfield defended, much 
 as it was before, it should be well understood that they 
 must be real reforms, real changes, not mere additions 
 to our law. Of mere additions to our law we have 
 seen enough. We have now before us two Blue Books 
 containing the results of an inquiry conducted by a 
 Committee of the House of Commons as to the steps 
 which ought to be taken "to simplify the Title to Land 
 and facilitate the Transfer thereof, and to prevent 
 Frauds on Purchasers and Mortgagees of Land\" 
 The point to which the attention of the Committee 
 was chiefly directed was the complete failure of two 
 modern statutes, the one due to Lord Westbury, the 
 other to Lord Cairns, intended to provide means for 
 the registration of titles to land. On these two statutes, 
 or at least on the latter of them, many reformers had 
 pinned their hopes, but the witnesses examined, and 
 the members of the Committee, however they might 
 differ on other points, could not but agree that the 
 failure has hitherto been complete. This is, indeed, 
 so painfully obvious as to be beyond dispute. The 
 Acts have been ignored by landlords and their advisers. 
 Many different causes were assigned for this failure. 
 The more hopeful considered that the scheme had not 
 been sufficiently advertised ; that solicitors had not 
 been properly conciliated ; that Lord Cairns' Act had 
 
 ^ Reports from the Select Committee on Land Titles and Transfer, 
 loth July, 1878, and 24th June, 1879. 
 
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The Law of Real Property 167 
 
 been prejudiced by the collapse of Lord Westbury's 
 inferior and less practicable measure. The less hope- 
 ful referred to the great complexities of English titles, 
 so different from the simple and registrable titles of 
 Australia and New Zealand, to the fact that a land 
 owner has no inducement to incur the expense of 
 putting his land on the register, to the English love 
 of secrecy, the English hatred of offices and officials. 
 These differences of opinion spread from the witnesses 
 to the members of the Committee, and produced two 
 draft reports, the one submitted by Mr Osborne 
 Morgan, and finally adopted, the other proceeding 
 from Mr Shaw Lefevre. The chief issue between the 
 two reports was the expediency of requiring the regis- 
 tration of deeds. Now the registration of deeds is a 
 very different matter from the registration of title. 
 The report puts the distinction clearly and well. The 
 registration of title "aims at presenting the intending 
 purchaser or mortgagee with the net result of former 
 dealings with the property," while the registration of 
 deeds "places the dealings themselves before him, and 
 leaves him to investigate them for himself." It was 
 generally admitted that the registration of title aimed 
 at by Lord Cairns' Act is the more desirable system, 
 and that the Act itself is very cleverly constructed. 
 The great question was whether, this Act being for 
 the present a dead letter, we ought not at least, as a 
 temporary protection against fraud, to compel the 
 registration of deeds. It was allowed that such regis- 
 tration is an efficient protection against frauds of a 
 particular kind, a kind which has lately been brought 
 to the notice of the public by the ingenuity of Messrs 
 
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1 68 The Law of Real Property 
 
 Dimsdale and Downes. These gentlemen, it was 
 acknowledged, could hardly have succeeded in giving 
 ten or twenty "first mortgages" on the same piece of 
 land, had that land been situate in Middlesex or 
 Yorkshire, in a county, that is, in which the regis- 
 tration of deeds is required. But desirable as it is to 
 secure ourselves against a repetition of these scandalous 
 frauds, it is thought by Mr Lefevre and those who 
 followed him that this security would be bought at too 
 dear a price were we to abandon our ideal, a regis- 
 tration of title, and adopt and consecrate an inferior 
 though more immediately practicable system. The 
 question is doubtless difficult, and we hesitate to decide 
 between many high authorities and many sound argu- 
 ments ; but, on the whole, we think that the minority 
 of the Committee were in the right. We shrink with 
 Mr Lowe from that "mausoleum of parchment," a 
 registry of deeds. Of two schemes, both of which will 
 protect us against Mr Dimsdale, but only one of which 
 will render the sale and mortgage of land a simpler 
 and less costly undertaking than it now is, the choice 
 seems easy, and we will not believe that the better 
 plan is impracticable until efforts much more vigorous 
 than any hitherto made have failed to secure its adop- 
 tion. For the present compulsory registration of title 
 is out of the question, and we may be heartily glad 
 that it has not been tried. It would, indeed, be im- 
 possible to force all land owners to do what not one 
 land owner in a thousand has chosen to do of his own 
 accord. The suggestion has been made that it is so 
 much for the benefit of society at large that a habit of 
 registering should be formed, as to make it sound policy 
 
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The Law of Real Property 169 
 
 for the State to undertake for some few years to register 
 titles for a very small fee, or even gratuitously. This 
 suggestion seems to us worthy of all attention. It may 
 shock stern economists that public tax-raised money 
 should be spent to confer a benefit on individuals 
 already lucky enough to possess land ; but it may well 
 be doubted whether we could lay out money in a 
 manner more advantageous to posterity than by inducing 
 the present generation of land owners to set their titles 
 in order, and have them publicly registered. 
 
 But all this by the way ; whether the State should 
 insist on the registration of titles as a matter of national 
 concern ; whether, even if it were willing to incur 
 expense, it could in the present state of English law 
 get the work done successfully, are questions which 
 we may raise, but will not discuss. One fact, however, 
 is obvious, namely, that among the chief obstacles to 
 any efficient system of registration is the perverse 
 complexity of real property law. 
 
 This was brought to the notice of the Committee 
 by many most competent witnesses. Indeed, it was so 
 constantly brought to their notice that they could not 
 but recommend in their report certain changes in the 
 law. Perhaps they felt that in proposing these changes 
 they were trespassing beyond their proper sphere. To 
 this we readily ascribe the timid and desultory nature 
 of their proposals. They propose that a certain statute, 
 called the Statute of Uses, should be repealed ; that 
 the land of a dead owner should pass, not straight to 
 his heir, but to a "real representative" comparable to 
 the personal representative who takes his goods and 
 chattels ; that the machinery of a mortgage should be 
 
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1 70 The Law of Real Property 
 
 less clumsy than it at present is. Now all these may 
 be changes in the right direction ; but if it was the 
 Committee's business to consider them it was also their 
 business to consider many other things also. Apparently 
 they were content to catch at a few valuable hints 
 thrown out by Mr Joshua Williams, Mr William 
 Barber, and other witnesses, without asking themselves 
 whether the particular absurdities which they condemn 
 are not logical parts of a system the whole of which is 
 equally worthy of condemnation. We should be glad 
 to learn that the Committee (a more able and industrious 
 it would be hard to find) had been reappointed with 
 power to consider the whole of our land laws. We 
 are convinced that such reappointment would result 
 in proposals very different from those now made, 
 proposals not limited to the trimming and pruning 
 of essentially bad law, but extended to the rooting up 
 of the cause of all those evils which are noticed in the 
 present report and countless others no wit less grave. 
 
 For though we would begin with changes which 
 might be called formal rather than material, these 
 changes should be bold and thorough. The simplifica- 
 tion of our land laws which is needed is nothing less 
 than a total abolition of all that is distinctive in real 
 property law. The distinction between real and 
 personal property might be done away, without any 
 disturbance of substantial rights or interests. There 
 would be a saving of money, of time, of temper, of 
 trouble ; a saving of vexatious lawsuits and of those 
 worst of quarrels — family quarrels ; vast masses of 
 antique and unintelligible law might be for ever for- 
 gotten ; but beyond this, there would be little change, 
 
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The Law of Real Property 1 7 1 
 
 and certainly no change which the veriest Tory could 
 call revolutionary. 
 
 It is really high time that the question should be 
 asked, whether we gain anything whatever by keeping 
 two systems of property law. Two systems we have, 
 as many know to their cost, each with its own peculiar 
 history, each with its own peculiar doctrines. Of course, 
 it is plain enough that for certain purposes law must 
 distinguish between the various subject matters of 
 proprietary rights, and must place land in one class, 
 moveable goods in another. It is chiefly with regard 
 to the remedies for wrongs, breaches of contract, 
 trespasses, and the like, that the distinction is important, 
 and the distinction is well enough marked in English 
 law, but marked, it should be noticed, by a line which 
 does not coincide with that which divides real from 
 personal property. And yet it is to this distinction 
 that the words real and personal apparently point ; for 
 real property, so the phrase would lead us to think, 
 there are real remedies, for personal property none but 
 personal remedies. But these words are of late 
 introduction, and were always inapt. The old word 
 hereditaments, things descending to the heir, is the 
 real key to the situation. Our distinction between 
 the two kinds of property is not to be explained by 
 any jural necessity, it is the outcome of a long chapter 
 of accidents. What is really at the bottom of the 
 distinction is the fact that we have two systems of 
 inheritance, or, if that phrase be incorrect, one law of 
 descent and another law for the distribution of an 
 intestate's goods and chattels. This is the one central, 
 all-important fact from which the two systems diverge. 
 
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1 72 The Law of Real Property 
 
 What, then, do we want with two systems of 
 inheritance ? We might, however, be thought visionary 
 and unpractical were we at once to address ourselves 
 to this abstract question. To any arguments drawn 
 from the complexities which arise from this dualism, 
 or from the comparative simplicity of foreign law, it 
 might be replied that having a good, or at least 
 tolerable, law of descent, we ought not rashly to 
 abandon it for the sake of technical symmetry. For, 
 of course, it is the law of descent, the law applicable 
 to real property, that is threatened, no one being so 
 enamoured of the heir-at-law as to desire that he 
 should take, not only all the land, but also all the 
 goods. Of the law of descent we are therefore obliged 
 to speak, though it is certainly difficult to criticise it 
 without insulting the intelligence of our readers. 
 What need be said may be said in few words. The 
 law makes a will for intestates which no sane testator 
 would make for himself However often this may 
 have been said, it remains unanswered ; it is un- 
 answerable. Its truth may be easily tested. There 
 are hundreds of wills set forth in the law f-eports, and 
 any one who will look at them, or who will even look 
 at the Illustrated London News, may see that it is not 
 the rule, but the rare exception, for any man to leave 
 his land to his eldest son without making provision 
 thereout for his widow and younger children. Besides, 
 what class of persons is it that the law of inheritance 
 should regard ? Surely those who are most likely to 
 die intestate, the men of small means, not the owners 
 of vast estates ; and in popular estimation a man of 
 small means would be guilty of more than folly and 
 
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The Law of Real Property 1 73 
 
 little less than crime were he to make the will which 
 the law, in the fulness of its wisdom, makes for him. 
 We are glad to hear Mr Williams speak his mind on 
 this matter. He, we should imagine, had no prejudice 
 against the law of real property, but "I confess," he 
 says, "that, saving estates tail, the descent of which 
 should, I think, be permitted to remain, I should be 
 glad to see the whole law of inheritance swept away'." 
 The Essay by Mr Eyre Lloyd, with the title of 
 which we head this Article, is instructive^ We cannot, 
 indeed, praise the work very highly, but it serves to 
 bring into strong relief the fact that the whole civilised 
 world is against us. It was not always so ; primo- 
 geniture has been known in many parts of Europe, 
 the postponement of women in most, perhaps in all. 
 But it is so now. Mr Lloyd arranges the countries 
 of Christendom in alphabetical order, and as we pass 
 from Austria to Wurtemburg the same phrases con- 
 stantly meet our eyes; "all property, real and personal, 
 is divided equally between the children," "without 
 distinction of sex," "no distinction between males and 
 females," and so forth, continually. And the excep- 
 tions are noteworthy. The only exceptions of any 
 importance are Great Britain, Russia, and Servia. 
 Have we not lately learned (if not, we cannot plead a 
 lack of instructors) that of all countries Russia is the 
 most barbarous and backward, save, perhaps, Servia ? 
 And yet it is to the despised Russia, and the con- 
 temptible Servia, not to France, Germany, or Italy, 
 
 ^ Seisin, p. 97, and Evidence before the Committee, First Report, 
 p. 27. 
 
 ^ Frimogeniture as it exists in England, by Eyre Lloyd, B.A., 
 
 London, 1877. 
 
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1 74 The Law of Real Property 
 
 that we must look for a law at all resembling our own. 
 But let us not be downhearted. Mr Lloyd has 
 concerned himself only with Christian countries ; should 
 he at some future time turn to the heathen he may 
 obtain valuable and gratifying results. 
 
 But, better still, he should turn to the Dark Ages. 
 To Herr Brunner the English law of inheritance is 
 vastly interesting^ There has, it seems, been a 
 notable dispute among German antiquaries, who have 
 divided themselves into two Schools, Gradualisten and 
 Parentelisien, over the question. What was the pure 
 Teutonic law of inheritance before it was corrupted by 
 Romanism and reason ? Some aid towards solving 
 this nice problem may, Herr Brunner thinks, be found 
 in the Anglo-Norman law ; and so in praiseworthy 
 fashion he has set himself to examine Glanvill, Bracton, 
 and the old Norman customs. His short Tract is a 
 valuable contribution to the history of English law, 
 one of those contributions which we obtain but too 
 seldom from English lawyers. But we must leave 
 Gradualisten and Parentelisien to fight their own 
 battles. We are, unfortunately, not at present in a 
 position to examine our law from the archaeologist's 
 standpoint. Let us, however, notice, with pardonable 
 pride, that a learned historian in search of the primitive 
 finds it in law which is still in force among us. For 
 should our readers desire to know what law it is that 
 Herr Brunner reveals as a curiosity for admiring 
 antiquaries, they have no need to trouble themselves 
 with mediaeval Latin or Norman French ; let them 
 but turn to Mr Williams's well-known text-book, and 
 ■^ Das Anglonormannische Erbfolgesystem, Leipzig, 1869. 
 
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The Law of Real Property 175 
 
 there, explained in the clearest English, they will 
 find substantially the self-same law\ A few little 
 changes have been made — for accidents will happen 
 in the best regulated museums — but, on the whole, 
 this interesting specimen of antiquity has been most 
 carefully preserved. 
 
 Englishmen, no doubt, are proud of this priceless 
 curiosity, but apparently their pride is somewhat 
 uncritical ; they are hardly aware of the facts whence 
 it derives its vast value in the eyes of connoisseurs. 
 Such, at least, is the conclusion to which we are 
 brought by a perusal of " Hansard." It seems to be 
 thought that a vague reference to " feudalism " is a 
 sufficient account of the origin of primogeniture. 
 Perhaps familiarity with this law has blunted our 
 power of discrimination. We are so accustomed to 
 see all the ages jumbled together in our nineteenth 
 century law that nothing surprises us, and any sem- 
 blance of explanation which may be offered for existing 
 institutions is accepted as satisfactory. " Feudalism " 
 is a good word, and will cover a multitude of ignorances. 
 To ask what was the real connection between feudalism 
 and primogeniture would argue a reprehensible dis- 
 content with beliefs sanctioned by Blackstone and 
 orthodoxy. Thus we miss the really noticeable points 
 in the history of our law, and our attention must be 
 drawn to them by learned foreigners, by whom they 
 can be contemplated with the single eye of scientific 
 interest. We are used to an unreasonable law of real 
 property, and we find no difficulty in believing that 
 
 ' Principles of the Law of Real Property, by Joshua Williams, Q.C., 
 twelfth edition, London, 1877. 
 
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1 76 The Law of Real Property 
 
 what is unreasonable now was unreasonable always, 
 "feudalism" of course, being a particular form of un- 
 reasonableness not to be rashly defined. 
 
 And so with the postponement of women, this also 
 is sometimes called feudal, but with much injustice ; 
 it is better than feudal, it is primitive, it is grandly 
 barbarous; nay, it is prehistoric. Indeed, the decline 
 of the old law of inheritance had begun long before 
 anything that could be called feudalism made its 
 appearance. Already in the seventh century a king 
 of the Visigoths ordained in the plainest terms that 
 females should share equally with males, and supported 
 his decree by sophistical reasoning about nature and 
 justice. But there is no accounting for the caprices of 
 foreign monarchs ; and in this country no rationalizing 
 Prince, Potentate, or Parliament has hitherto laid un- 
 holy hands on the sacred principle. Englishmen, we 
 say, are not sufficiently aware of the high pedigree 
 which may be claimed for their law. It may be (we 
 do not say it is, for we would not excite hopes destined 
 to be blighted, but it may be) that our law of inheritance 
 has some connection with that pure and primitive 
 record of barbarism, the Salic law, ce texte si fameux, 
 dont tant de gens ont parl4, et que si pen de gens ont 
 lu^. We must not be too eager to adopt a conclusion 
 so gratifying to our national vanity, but the fact remains, 
 that the author of our Leges Henrici Primi, when he 
 came to speak of the law of inheritance, thought fit to 
 abandon his English authorities, and to transcribe, with 
 slight modification, a passage from the Ripuarian law. 
 This passage was itself but a slightly modified tran- 
 ' Mon tesquieu, L Esprit des Lois, liv. xviii, ch. xxii. 
 
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The Law of Real Property 1 7 7 
 
 script of the world-famous words in the Lex Salica. 
 Why the EngHsh compiler did this we cannot say, nor 
 can we shut our eyes to the fact that his work is bad 
 and untrustworthy, but still there is some ground for 
 hope, and national boastings have been based on worse 
 evidence. But what a cause for congratulation is here! 
 The Lex Salica, so high authorities tell us, was in its 
 earliest form the production of a still heathen nation 
 uncorrupted by Christianity or civilization. Really, 
 when we think of the many destructive forces which 
 at one time, of course long ago, threatened to deprive 
 the male sex of its just prerogative, it seems little more 
 than an accident, little less than a miracle, that our 
 law of inheritance came safely through those revolu- 
 tionary Dark Ages. There was the Church arrayed 
 on the side of women, and of the meddlesome canon 
 law all diligent readers of " Blackstone " know what 
 to think. There was the civil law, including those 
 improper Novels which even English judges are 
 suspected of having perused in private. Nor are the 
 names of individual revolutionists wholly forgotten. 
 In the seventh century, and the neighbourhood of 
 Paris, there lived a monk and conveyancer, one Marculf 
 by name, the father of all those who publish collections 
 of precedents. This bad man, not respecting an- 
 cestral wisdom, settled a form of conveyance from a 
 father to his daughter, with intent to circumvent the 
 salutary Salic law, which he scrupled not to call 
 " diuturna sed impia consuetudo." Diuturna, indeed, 
 what would he have said now ? We are afraid that 
 he would have said diuturnissima. Lmpia indeed, 
 but let us remember, in his favour, that the law was 
 
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1 78 The Law of Real Property 
 
 not in his days so old and mellow as it now is. And 
 yet there are those even in this nineteenth century 
 who, unconvinced by the annual eloquence of Her 
 Majesty's law officers, and glorying in their invincible 
 ignorance, still mutter to themselves the words of 
 Marculf, "diuturna sed impia consuetudo," or, changing 
 the phrase but not the meaning, adopt Mr Williams's 
 plain English, "worse than worthless," "absurd and 
 injurious." 
 
 But, in all seriousness, why should women be post- 
 poned ? It must be out of respect for some one's 
 memory. But whose ? Is it Ethelbert or Cnut, is it 
 Salagast, Bodogast and Widogast, or Choke, Croke, 
 and Coke, is it Howel Dda or Dynwal Moel Mud? 
 The Conservative party is a historical party, let it 
 explain to the uninitiated the exact form which its 
 ancestor-worship takes. And it really should be 
 more consistent. It would, perhaps, be imprudent to 
 re-enact the whole of the Lex Salica, because there 
 are so many words in it which no one understands. 
 A modern judge, not inexpert in the construction of 
 obscure documents, might reasonably shrink from the 
 title " De Chrene Cruda." And so with the Welsh 
 Triads, and the Senchus Mor, and even with the 
 Dooms of Hlothar and Eadric. But were we really 
 in earnest something might, with the help of philo- 
 logists, be done for the great principles of archaic law. 
 Foreigners have stated as a fact, that it is still common 
 in England for a man to sell his wife^; that they 
 
 ^ " Es ist bekannt, dass in England unter den gemeinen Volk der 
 Gebrauch noch heut zu tag gilt, die Frau auf dem Markt zu bringen 
 und zu verkaufen." — Grimm, Deutsche Rechtsalterthumer, p. 451. 
 
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The Law of Real Property 1 79 
 
 mistake Punch for the Statute Book is plain, though 
 pardonable. The statement is unfortunately not quite 
 accurate, but it might be made so ex post facto by the 
 next Metropolitan Markets Act. We are in difficulties 
 with our bankruptcy law ; might not a short and easy 
 way with insolvent debtors be found in, let us say, the 
 Twelve Tables ? But we really must have the blood 
 feud ; no criminal code will be complete so long as 
 this antique and excellent institution is neglected. As 
 matters at present stand, our law of inheritance does 
 look a little foolish, and from time to time the words of 
 Marculf recur to our minds. But make our law all of one 
 piece, and all will be well, the wisdom of our ancestors 
 will be respected, and the price of woad will rise. 
 
 We would fain be serious, but we can only regard 
 the arguments in favour of postponing women to men 
 as some sort of fantasia or capriccio on the Leges 
 Barbarorum. But the subject has a side which cannot 
 be so airily treated. We again repeat that it is not 
 our purpose to deal with the more obvious effects of 
 our law of inheritance ; about these readers of this 
 Review have probably made up their minds. But it 
 seems doubtful whether the full strength of the case 
 for reform is widely known, and we turn to some of 
 the less obvious effects of the law, believing that were 
 these well understood there could be but one opinion 
 as to the necessity of a radical change. For absurdity 
 can go no further than to represent the badness of this 
 law as a sentimental grievance. It may seem a small 
 thing to introduce a reasonable system of succession 
 on intestacy, for few who have aught to leave allow 
 our absurd law to distribute their property ; but even 
 
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 though the direct and immediate reform may be small, it 
 must bring in its train certain other reforms which would 
 effect a simplification — a time-saving, money-saving 
 simplification throughout the whole body of the law. 
 
 But, in the first place, let it be noted that our 
 canons of inheritance, besides being guilty of the two 
 capital follies with which they are commonly charged 
 — primogeniture and the postponement of women — 
 are in other respects thoroughly bad. What shall we 
 say of a law which ordains that if a man purchase land 
 and die without issue, his most distant relative on his 
 father's side shall inherit before his nearest maternal 
 kinsman, before his mother herself? A "parentelic" 
 system of descent may interest foreign professors, but 
 its convenience and justice are not readily seen. Surely 
 there is nowadays no presumption that a man's paternal 
 kinsfolk are, or ought to be, nearer or dearer to him 
 than his mother and his mother's kin. Our Statutes 
 of Distribution, which, being but two centuries old, we 
 may call modern, may not be very perfect ; but at 
 least they start from the sound cognatic and "gradual- 
 istic" principle, which is, as a matter of fact, the principle 
 of the modern family. 
 
 In the second place, we can now well spare the 
 local customs of descent — gavelkind, borough English, 
 and those still more anomalous customs which lie 
 dormant for centuries, and never awake save to do a 
 mischief. The only reason for retaining the gavelkind 
 custom has been, that it was one degree less ridiculous 
 than the common law ; it postpones females to males, 
 but knows not primogeniture. The borough English 
 rule, which gives all a man's land to his youngest son. 
 
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 has also fulfilled its only purpose, that of preserving 
 for modern historians a relic of an almost prehistoric 
 family system. But the time has come when all these 
 local rules should perish ; they are merely snares for lay- 
 men and traps for costs. However, all this is, or should 
 be, obvious enough, and we pass to some remoter 
 consequences which must follow from the adoption of 
 one law of succession for all kinds of property. 
 
 Foremost among these we reckon the abolition of 
 "equitable conversion," and all its attendant subtleties. 
 The doctrine of conversion (let not our readers think 
 that we here desert law for theology) arises in this 
 way. A man owns land ; by his will he directs trustees 
 to sell that land, and to divide the proceeds between 
 A and B. The trustees do not sell at once, and while 
 they delay A dies ; who is to take his share of the 
 money, his real or his personal representatives ? It 
 would be unfair that the trustees' delay should benefit 
 the heir at the expense of the next-of-kin, and the rule 
 has been established that the trust to sell converts the 
 land into money for the purpose of succession. And 
 so with the converse case in which a testator directs 
 money to be laid out in buying land for one who dies 
 before the purchase is made. A person, it is said, 
 may make land money, or money land. Hence an 
 infinity of perplexing questions, hence a vast mass of 
 law, much of it very equitable and very elegant, but 
 all of it quite unnecessary. Many thousand law-suits 
 has this transubstantiation, or rather consubstantiation 
 (for land may be land for some purposes and money 
 for others), cost the country ; and yet this doctrine is 
 the unavoidable consequence of having two systems of 
 
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1 82 The Law of Real Property 
 
 succession where one would sufifice. Once get rid of 
 the heir-at-law, and there will be no more need for con- 
 version ; all property will be for ever personal property. 
 
 It should be remembered that English law is by no 
 means unprepared to deal with personal property in 
 land. In the first place, this device of conversion is 
 often resorted to for the very purpose of placing land 
 beyond the reach of our inheritance law, and rendering 
 it divisible among the next-of-kin. In the second 
 place, there are leaseholds, and leaseholds are personal 
 property. It is certainly very ludicrous that when a 
 man dies intestate the field that he holds in fee should 
 go one way, the field that he holds for a thousand 
 years another ; but clearly all property in land might 
 be made personal without our being driven to invent 
 a wholly new system of land laws. Leaseholds may be 
 regarded as providentially preserved for our guidance. 
 If we must have a theory of tenure, let it be that all 
 land is in the last resort held of the Crown for a 
 million years'. Those who argue that to render land 
 divisible among the next-of-kin would necessitate 
 frequent actual subdivision, show their complete 
 ignorance of English law and English habits. They 
 may fairly be challenged to prove that a minute sub- 
 division of long leaseholds is any commoner than a 
 minute subdivision of freeholds. 
 
 When we reflect on the English impatience of 
 taxation, it is surprising that we should allow ourselves 
 to be heavily taxed by means of lawyers' bills for the 
 maintenance of the "worse than worthless." What 
 
 ^ Mr Lowe, we observe, ascribes this proposal to Mr Senior. 
 (Second Report, Q. 2938.) 
 
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The Law of Real Property 183 
 
 an outcry would there be were the Chancellor of the 
 Exchequer to propose a vote of money to be spent 
 on a decent edition of "Bracton" — something better 
 than that with which Sir Travers Twiss has favoured 
 the world — and yet we are willing to pay for a cabinet 
 of legal antiquities, if only we can have the annoyance 
 of causeless litigation thrown in for nothing. We are 
 willing to maintain even a "doctrine of conversion," a 
 most expensive property, provided that we are suffered 
 to keep our diuturna sed impia consuetudo of postponing 
 females to males. 
 
 Another reform would follow. After a long 
 struggle we have succeeded in establishing the principle 
 that a dead land owner's debts should, if possible, be 
 paid. But owing to our double property law, the 
 principle is carried into effect by very imperfect 
 machinery. Clearly the creditors should have some 
 one person or body of persons to whom they could 
 look as representing the dead man for all purposes, 
 and bound to pay the dead man's debts so long as there 
 are assets. As it is there is one man with the land, 
 another with the goods. So convinced is Mr Williams 
 of the necessity for some measure establishing a real 
 "real representative," that he would secure this object 
 even though the law of inheritance remained in other 
 respects unaltered. Mr Williams has on this point 
 convinced the Committee, but we hope for better 
 things. Let all property be personal property, and this, 
 as well as many other reforms, will follow as a matter 
 of course. A will of realty will be proved as a will of 
 personalty is proved, and a man's executor or admini- 
 strator will represent him for all purposes whatsoever. 
 
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184 The Law of Real Property 
 
 Take, again, the law concerning the effect of 
 marriage on property. No one can pretend that it is 
 in a satisfactory condition, and clearly the whole 
 subject must one day be reconsidered. But an abolition 
 of the distinction between real and personal property 
 would go far towards making it more intelligible, and 
 a better subject for further consideration. For, leaving 
 out all question as to property settled, whether by 
 statute or contract for the wife's separate use, and all 
 consideration of the very capricious "equity to a 
 settlement," we have this state of things— A man 
 marries a woman who has both freeholds and lease- 
 holds, his rights in the two are utterly different. 
 During the marriage he cannot sell the freeholds 
 without his wife's consent solemnly given ; he can sell 
 the leaseholds against her will. If he survive his wife 
 he is absolutely entitled to the leaseholds ; he gets at 
 most a life estate in the freeholds. For all this there 
 is no reason, though there may be a historical explana- 
 tion. It is true that the law of real property is rather 
 more favourable to married women than the law of 
 personal property, and the abolition of the distinction 
 would afford a good opportunity for making our one 
 system of property law better than either of the 
 existing systems. But it surely is of some importance 
 that the law of husband and wife should be intelligible 
 to the people, and this it never will be until we have 
 determined that two systems of property law are one 
 system too many. 
 
 You cannot create an estate tail in personal pro- 
 perty. This is a blessed truth and full of promise. 
 Establish, therefore, that freeholds are only extremely 
 
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The Law of Real Property 1 85 
 
 long leaseholds, and estates tail disappear. Here it 
 may be thought that we pass from matters of mere 
 law reform to questions of great social and political 
 interest. But not so, for any lawyer will tell us that 
 it is perfectly possible, and very common, so to 
 settle leaseholds and other personal chattels that they 
 shall go along with an entailed freehold estate. There 
 is no need to investigate the mechanism employed by 
 our modern Marculfs for this purpose ; but the fact is, 
 that, if it were impossible to create an estate tail, 
 settlements of land might still be made, and would 
 most certainly be made, which for most practical 
 purposes, and in the ordinary course of events, would 
 have the same effect as those which are now in use. 
 The result would not be quite the same, but so far as 
 all matters of real importance are concerned the result 
 would, we believe, be the same. Not a great reform, 
 then, some Liberals may be tempted to say ; but we 
 cannot agree with them. Once effected, it would be 
 easy, if thought advisable, to set narrower limits to the 
 power a proprietor has of settling his property, whether 
 land or goods ; but until some such simplification has 
 been introduced, any attempt to shorten settlements 
 will, in all probability, but darken the darkness of real 
 property law. Let us first do that which all men who 
 think about the matter must see to be good, then will 
 come the time for deciding questions about which men 
 may reasonably differ. 
 
 The position of a tenant in tail of full age is 
 amusing. Something between a life tenant and an 
 absolute owner, he can make himself an absolute 
 owner by executing a deed and having it enrolled — 
 
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1 86 The Law of Real Property 
 
 that is, by paying certain costs to his solicitor. Very 
 instructive is all this to learned Germans, but to tenant 
 in tail, and all who have to do with him, a nuisance. 
 Besides, these estates tail form one of the worst 
 stumbling-blocks in the way of an unlearned testator. 
 By some phrase thrown out at random he may succeed 
 in creating one of these anachronisms, or still more 
 probably render a law-suit inevitable by leaving it 
 doubtful whether he meant to give an estate tail or an 
 estate in fee simple. All such doubts should once for 
 all be answered ; estates tail should vanish ; one pitfall 
 would be safely filled in, one "possible construction" 
 of obscure wills be rendered for ever impossible. 
 
 Can anything be more absurd than what happens 
 on the death of a mortgagee in fee ? The only 
 substantive right, the right to be repaid the money, 
 passes to his personal representatives. But his heir 
 takes something; he takes "a legal estate" in the 
 land. Really he has no rights, he must deal with his 
 precious possession as others bid him, he can make no 
 penny thereout for himself. But the legal estate, the 
 ghost of a departed right, goes wandering from heir to 
 heir, and devisee to devisee, until it is hunted down, 
 and safely exorcised, and "got in," not without costs. 
 Otherwise there will be a law-suit and more costs. 
 These legal estates, mere abstractions of nothingness, 
 are a plague to vendors and purchasers, they are one 
 of the chief hindrances to the registration of titles. 
 To some extent, but to what extent our authorities tell 
 us is not very clear, an improvement has been intror 
 duced by a recent Statute ; but how ? By grafting 
 an anomaly on an absurdity, by timid tinkering and 
 
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The Law of Real Property 187 
 
 caulking.. There is but one way to meet the evil. 
 Render it impossible that the heir of a mortgagee, or 
 the heir of any one else, should take anything whatever. 
 For as with mortgagees, so with trustees. We are not 
 pleading for elegance or technical refinement, but for 
 real solid reforms, which would benefit the nation at 
 large. Should any reader think that we overstate our 
 case, we can only send him to the text-writers, but 
 we send him with confidence as to the result. Let him 
 reckon up the reported cases due to these outstanding 
 legal estates, let him multiply their number by the 
 average cost of a law-suit, let him consider how few 
 are the cases reported out of those decided, let him 
 consider how many are never pressed to a decision, 
 let him think of these things and of the obvious 
 remedy. 
 
 But throughout our law, look where we will, the 
 distinction between the real and the personal is found 
 a permanent cause of mischief. It is an all-pervading 
 distinction, similar to that which some metaphysicians 
 make between the objective and the subjective. 
 Indeed, were it still, as once it was, the fashion for our 
 lawyers to adorn their works with scraps of second- 
 hand and third-rate philosophy, there would doubtless 
 not be wanting those who would convince us that the 
 real is the objective and the personal the subjective. 
 However, lawyers have been in some respects more 
 fortunate than those with whom we have made bold to 
 compare them ; for between the two great opposites 
 they have found what metaphysicians are still to seek, 
 a tertium quid, the mixed fund. The part played by 
 the mixed fund is well illustrated by an extract from 
 
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 Mr Pollock's Principles of Contract, given below. 
 First, however, let us notice that the law of England 
 is good enough to encourage marriage, and with this 
 object in view has established certain rules respecting 
 the invalidity of a condition avoiding a gift on the 
 marriage of the donee. Of course, however, it cannot 
 deal with the two kinds of property by one set of 
 rules, for it is, or must be deemed to be, a maxim of 
 our law, that distinctions are to be multiplied. The 
 extract is as follows : — 
 
 " Conditions in Restraint of Marriage : — 
 
 "\i precedent, are with trifling exceptions (if any) valid as to both 
 real and personal estate. 
 
 " If subsequent, — 
 
 " General restraint. Good, it seems, as to real estate. 
 Bad as to personal estate or mixed fund (or a fund 
 arising only from the sale of realty, semble), and this 
 whether there is a gift over or not. 
 
 "Particular restraint. Good as to real estate; and good 
 as to personal estate if there is a gift over, otherwise 
 not^." 
 
 This is a very fair specimen of English law, and 
 the reader will see that we have not been romancing. 
 We have one rule for personalty, another for realty, 
 and then arises the question which rule is applicable 
 to the mixed fund. But why two rules ? Either 
 sound policy demands that a condition defeating a gift 
 on the marriage of the donee should be void, or it does 
 not, but it cannot possibly draw any distinction between 
 land and goods. It is, of course, very interesting to 
 know that the ecclesiastical and temporal courts could 
 
 ^ F. Pollock, Principles of Contract, ist ed., pp. 282, 283. 
 
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The Law of Real Property 189 
 
 not agree about the validity of these conditions, but a 
 history, however interesting, is not a reason. This is, 
 we repeat, a fair specimen, and we have chosen it, not 
 because it is more strikingly irrational than many 
 others, but because Mr Pollock's statement is so concise, 
 that it may easily be quoted. In truth, "it is curious 
 to notice," as Mr Williams observes, "the strange 
 differences that exist in our law, without any particular 
 reason whatever, so far as one can see, between real 
 estate and personal estate\" This remark serves as 
 an introduction to an account of a very strange differ- 
 ence indeed, and one due to the unprincipled meddling 
 of a modern Parliament. We say unprincipled, for an 
 opportunity was offered fof establishing on a particular 
 point the same rule for real and personal property, but 
 our legislators preferred to introduce a new complica- 
 tion for which we will defy any one to find "any 
 particular reason," or, indeed, any reason particular or 
 not particular. The matter is too elaborate to be here 
 explained, but we refer our readers to Mr Williams's 
 book on Settlements. If they do not agree with 
 the learned author that " it is curious," their taste for 
 legal curiosities must need cultivation. 
 
 Now, it seems to us plain that, even if both our 
 two systems were reasonable and convenient, there 
 would still be good cause for ridding ourselves of one 
 of them. Much more, therefore, ought we to abolish 
 so inconvenient and unreasonable a system as that of 
 which we read in The Seisin of the Freehold. The 
 general reader would hardly thank us for any ob- 
 servations on the abstruser doctrines of the law so 
 ' Settlements, p. 159. 
 
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 lucidly expounded, we had almost said exposed, by 
 Mr Williams. And yet it is only by considering the 
 minuter details of the law that we can appreciate its 
 worthlessness at its true value. This is one of the 
 worst impediments in the way of improvement. When 
 told that the law is bad, and might easily be bettered, 
 we are sceptical, we desire, and rightly desire, a proof, 
 and when the proof is offered, we say, and truly say, 
 that it is dull. For who shall interest us in contingent 
 remainders, or the Statute of Uses, while Chinese 
 metaphysics remain unexplored ? If we want bar- 
 barism at its best, we can turn to the Lex Salica. If 
 we want scholasticism at its best, we prefer Thomas 
 Aquinas to Lord Coke. Were it a matter of wrong 
 or wicked lewdness reason would that we should lend 
 an ear (the reports of the police and divorce courts are 
 found by some to have a certain human interest), but 
 as to words and names and our law, our ordinary civil 
 law, let lawyers look to it, for we will be no judge of 
 such matters. And yet the subtle learning of con- 
 tingent remainders is suffered to interfere with actual 
 life. It is mere innocent ingenuity amusing itself with 
 frivolous distinctions. On it may depend the rights 
 of the widow, the orphan, the purchaser who has paid 
 for land and bought a law-suit. And it is all un- 
 necessary. There can be no contingent remainders 
 of leaseholds. Make freeholds personal property, and 
 one mass of obscure and difficult doctrines may be for 
 ever forgotten. Who would lose by such a reform ? 
 No one. Must we hint that this is the very reason 
 why no one cares to alter the law ? Who would gain ? 
 Every one who, whether as vendor or purchaser, 
 
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The Law of Real Property 191 
 
 donor or donee, had anything to do with freehold 
 land. 
 
 Then there is that marvellous monument of legis- 
 lative futility, the Statute of Uses, the statute through 
 which not mere coaches and four, but whole judicial 
 processions with javelin-men and trumpeters have 
 passed and re-passed in triumph. It has been said 
 of this ambitious statute that its sole effect has been to 
 " add three words to a conveyance." This may pass 
 as a contemptuous epigram, but it is far from the 
 whole truth. It has caused innumerable unnecessary 
 law-suits. This is not an epigram but a fact. It is 
 not a mere Statute of Uselessness but a Statute of 
 Abuses. And it will be readily understood that if 
 there is a flaw or a stupidity in our property law, the 
 whole body of the civil law is the worse for it, for 
 property law must be the very core of the Corpus 
 Juris. Thus, it is not only those who make and profit 
 by elaborate settlements of land who suffer by our mis- 
 placed antiquarianism. Whenever title to freeholds 
 comes in question, directly or indirectly, the power of 
 this statute is felt, and the real merits of the case but 
 too often disappear beneath the accumulated rubbish 
 of ages. It might have been supposed that one part 
 at least of our law would be plain, the law relating to 
 the Parliamentary franchise. But it never will be 
 plain so long as it depends on real property law 
 essentially nonsensical. It is a "fancy franchise," 
 more fanciful than any conceived by our most fantastic 
 Minister, when the right to vote is given or denied 
 by the fact that a certain deed took effect not under 
 the common law but under this statute. It is a 
 
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192 The Law of Real Property 
 
 powerful sarcasm on our boasted liberalism that the 
 cases which of recent years have turned on the most 
 absurdly frivolous distinctions have been cases on the 
 right to vote under the Reform Act. 
 
 Space may fail us but matter does not, for in truth 
 it is only when we turn to "questions of construction " 
 that the badness of our dual system is seen at its best. 
 To take but one instance, centuries have not sufficed 
 to convince the people of England that the word 
 "heir" is quite inapplicable to personal property; they 
 cannot or will not believe that we have two distinct 
 schemes of succession. The consequence is that in 
 their innocence testators make use of inappropriate 
 phrases, and then follows the inevitable administration 
 suit, the family quarrel, the costs. We do not hesitate 
 to say that ten per cent, of the "questions of con- 
 struction " which are raised are due to our having, 
 and having long had, two bodies of law where one 
 would suffice. Doubtless, the simplification of our 
 property law would work but slowly and gradually on 
 the minds of testators, but it would work surely, and 
 some day an educated Englishman may be trusted to 
 make a simple will for himself 
 
 Perhaps there is not sufficient work for our Courts, 
 that wrongs being unknown, and all contracts kept, we 
 are obliged to invent problems for our judges. Can 
 there be any other explanation than this for the care 
 with which we preserve a system or want of system 
 ingeniously framed to lead testators astray ? And yet 
 we are constantly told of large arrears of cases waiting 
 to be tried, we constantly hear demands for more and 
 more judges. We are not so very successful in sup- 
 
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The Law of Real Property 193 
 
 pressing fraud and breach of faith that we can afford 
 to encourage by artificial means that worst kind of 
 Htigation, litigation between parties all equally innocent, 
 equally unfortunate. The promoter of bubble com- 
 panies, the swindling director, the fraudulent bankrupt, 
 are allowed a respite, which may be ruinous to those 
 whom they have cheated, while the Courts are de- 
 ciding what shall be done with the property of a man 
 whose sole crime is that he has shown a not unnatural 
 ignorance of the distinction between real and personal 
 estate. 
 
 Now, were it seriously contended by the friends of 
 the heir-at-law that his existence is necessary for the 
 maintenance of our present social order, that he is a 
 prop of the State, or the Church, or of anything else, 
 we might have to consider whether the system of law 
 of which he is the centre might not be made more 
 tolerable by amendment. But no such contention is 
 raised. On the contrary, the advocates of primo- 
 geniture are fond of laying stress on the fact that few 
 land owners die intestate. Is it not a little one ? — 
 this is their favourite plea. No, we reply, the abuse 
 is not a little one. It is for the sake of the heir-at-law 
 that we disorder the whole of our jurisprudence. In 
 order to postpone women to men, in order to make a 
 will which no one wants made, we render our law un- 
 knowable by any save experts. If after all our efforts 
 we fail in attaining our worthless object, if daughters 
 and younger sons are not disinherited, this is but an 
 additional argument for reform. We undergo all the 
 evils of having two systems of property law, and have 
 nothing to show for it. You cannot prove that a law 
 
 M. 13 
 
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194 The Law of Real Property 
 
 is good by showing that all sensible men contrive to 
 evade it. 
 
 It is quite unnecessary for us to say harsh words 
 of our ancestors. There is no need to seek a scape- 
 goat among the feudalists, the canonists, the civilians. 
 We have no quarrel with the Parliament which passed 
 the Statute De donis or with that which passed the 
 Statute of Uses. For all our legislators and judges 
 from Ethelbert to Eldon we profess profound respect. 
 It is we who are guilty of our own law, for as Hobbes 
 rightly says, " The legislator is he not by whose 
 authority the laws were first made, 'but by whose 
 authority they now continue to be laws." It is there- 
 fore our present law-givers, and we who have elected 
 them, that are to blame, if the right to land, and the 
 right to vote, may still depend upon nonsense which it 
 would be unjust to the schoolmen to call scholastic, 
 nonsense which can only be explained by long stories 
 about the quarrels between Courts which we have 
 abolished. If these quarrels ended in an illogical 
 compromise, this may have been our ancestors' 
 wisdom, but that the terms of this compromise are 
 still retained as law for all time is no better than our 
 own . folly. 
 
 To any reader trained in the historical school now 
 -fashionable our arguments may savour of a narrow 
 and frigid Utilitarianism long since abandoned by all 
 enlightened persons. The law of real property is, we 
 shall be told, an historical institution — the product 
 of social evolution, of national life — and as such it 
 must be criticised ; nor must it be rashly condemned 
 if it fail to conform to our notions of practical con- 
 
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The Law of Real Property 195 
 
 venience. Now, it is but too probable that we are 
 sadly deficient in the historic sense which it is the 
 pride of this generation to have discovered in itself. 
 It is not unlikely that we are behind an age whose 
 chief ambition is to be behind itself. We must even 
 confess to a belief that the law reformers of fifty years 
 ago were often on the right track, though it is but too 
 plain that they were ignorant persons who knew nothing 
 of the primitive Aryan, and believed that all the Middle 
 Ages were contemporaries. Were it necessary we 
 should not fear to maintain the heresy that no practical 
 convenience, however small, is to be sacrificed on the 
 altar of historic continuity. But in the present case 
 there is no need for the assertion of this very old- 
 fashioned doctrine. Were it expedient, we might 
 easily show that for centuries past there has been one 
 steady tendency running through the whole movement 
 of our property law ; a tendency towards the assimilation 
 of real to personal property. Indeed, we know not 
 where to date the beginning of this tendency, for, as 
 far as our records reach, we see it at work. We have 
 been gradually, very gradually, moving towards the 
 idea of absolute property in land. The theory of 
 feudal tenure marks a particular stage in the move- 
 ment ; but the movement had begun long before the 
 feudal theory was conceived, and has continued long 
 after that theory has been capable of producing any 
 consequences save confusion and inconvenience. What 
 is now desirable is that we should bring the work 
 which has been so long in hand to its logical con- 
 clusion. We know that there are those who would 
 hesitate to sanction the doctrine that there may be 
 
 13—2 
 
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196 The Law of Real Property 
 
 and is absolute property in land. They have a certain 
 affection for the old theory of tenure, not because they 
 are Conservatives, but because they are Radicals ; 
 because in their eyes that theory serves to indicate, 
 however imperfectly, the principle that property in 
 land ought not to be placed on the same footing as 
 property in other things. How far their economical 
 reasonings justify this distinction we may not here 
 inquire ; but let them ask themselves whether they 
 can seriously hope to make use of the theory of tenure 
 in aid of their schemes. To us it seems that they do 
 but prejudice their cause by seeking an alliance with 
 worn out and discredited principles. If there be any 
 special reason for taxing landlords more heavily than 
 other people, if there be just cause for appropriating 
 to the State " the unearned increment" of rent, all this 
 is compatible with a simple system of property law, 
 unencumbered by theories of tenure. We do not 
 believe that any sense of the claims of the community 
 on the land is kept alive by the doctrine still to be 
 found in our law books, that of land no subject can 
 be the absolute owner. Every one knows that this 
 doctrine, however indispensable as an explanation for 
 some of the subtleties of real property law, is, in fact, 
 untrue. " The first thing the student has to do is to 
 get rid of the idea of absolute ownership\" So says 
 Mr Williams ; but we may add, with equal truth, that 
 the second thing he has to do is to learn how, by slow 
 degrees, the statement that there is no absolute owner- 
 ship of land has been deprived of most of its important 
 consequences. The question, therefore, for those who 
 ^ Real Property, p. 17. 
 
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The Law of Real Property 197 
 
 would limit the rights of property in land is, whether 
 they would rather work in the dark or in the light ; 
 whether they would rather deal with a modern and 
 reasonable system, capable of further improvement, or 
 with a mass of old theories — once, perhaps, an organized 
 whole, but long since fallen into decay. 
 
 For our own part, we can imagine no sounder 
 advice than that given by Mr Williams : — " For the 
 future, perhaps, the wisest course to be followed would 
 be to aim as far as possible at a uniformity of system 
 in the laws of both kinds of property ; and, for this 
 purpose, rather to take the laws of personal estate as 
 the model to which the laws of real estate should be 
 made to conform, than, on the one hand, to preserve 
 untouched all the ancient rules, because they once 
 were useful, or, on the other, to be annually plucking 
 off, by parliamentary enactments, the fruit which such 
 rules must, until eradicated, necessarily produce\" 
 Thus has Mr Williams preached through twelve 
 editions of his book, but we grow no wiser ; and now 
 we have Mr Morgan's Committee marking out for us 
 the annual crop of weeds for the year 1 880 : a statute 
 to be repealed, a real administrator appointed, verbiage 
 curtailed, but no attack on the root of all evil — the 
 heir-at-law. Perhaps when Mr Williams has published 
 twelve more editions we may be converted to his bold 
 and sensible policy, and regret that we have spent so 
 much well-meant labour in trying to patch up a hope- 
 lessly rotten system. When that time comes we shall 
 think of Mr Williams not only as of a very learned 
 lawyer, but also as of a law reformer who knew what 
 1 Real Property, p. 468. 
 
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198 The Law of Real Property 
 
 he was about : a law reformer of the good old school, 
 which knew that a reform to be effectual must be 
 logical and thorough. 
 
 Such, briefly stated, is the case for reform. We 
 have chosen to take what may seem to some a narrow 
 and a low view of the subject, but our object has been 
 to lay stress on the practical inconveniences of our 
 present law. We are quite willing to adopt Mr 
 Matthew Arnold's argument, that to our law of 
 inheritance is in part due that very unequal dis- 
 tribution of wealth of which he complains, and we are 
 decidedly of opinion that "materialize," "vulgarize," 
 and "brutalize" are brave words and not inapt. We 
 are quite willing to leave open the question whether 
 our law does not give to settlors too vast a power of 
 tying up property. We would gladly see land a 
 merchantable commodity. But we have purposely 
 avoided all great social and political questions, and 
 even all questions which are likely to be warmly con- 
 tested. We have taken our stand on low ground, the 
 saving of quarrels and costs, but our position is, we 
 verily believe, impregnable. 
 
 There was a time, some fifty years ago, wheil it 
 might have been plausibly said that to meddle with so 
 old a structure as our land laws was dangerous. For 
 centuries they had been almost untouched by statute, 
 and there was some reason for thinking that to 
 improve them was beyond the power of mortal man. 
 But there were reformers in those days. The work 
 that they did was done skilfully and well ; and yet it 
 was a daring work. Old abuses fell like leaves in 
 autumn. Fines were not saved by their antiquity, 
 
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The Law of Real Property 199 
 
 nor recoveries by their absurdity, nor real actions by 
 their costliness. The writ of entry sur disseisin in the 
 quibus perished along with writs of aiel, besaiel, 
 tresaiel, and cosinage. Our sense of historical con- 
 tinuity was not keen enough to save " the casual 
 ejector," or "the common vouchee." A decent oblivion 
 was provided for John Doe and Richard Roe. The 
 law of inheritance itself did not altogether escape the 
 touch of the innovator. The deluge did not follow. 
 The House of Lords exists. The Church flourishes. 
 Had these measures failed, had they even produced 
 great though temporary inconvenience, were we in- 
 consolable for the loss of the solemn mummery of 
 fictitious actions, we might hesitate to make another 
 perilous experiment. But these measures were 
 splendidly successful. There probably has never been 
 a statute which has won higher praise for its technical 
 perfection, and that too from critics not wont to praise 
 highly, than the Act which abolished fines and 
 recoveries. It did its work with little friction. It 
 was skilful and it was bold. Are we to believe that 
 similar skill and boldness are not now at the command 
 of law reformers } This surely is not the case. The 
 work might be done, and' done well, were there a 
 demand for it. But such a demand must nowadays 
 be a popular demand. We trust it may soon be made. 
 It did not seem unreasonable to hope that a Con- 
 servative Ministry might have given us this reform ; 
 for it is a Conservative reform, one, that is, which has 
 no tendency to benefit one class at the expense of 
 others. But now, it seems, we must wait for the 
 Liberals ; may they soon come and deliver us from 
 this heir-at-law. The war against him and his works. 
 
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200 The Law of Real Property 
 
 let it be well understood, must be a war of exter- 
 mination. There should be no compromise, for this 
 simple reason, that any compromise must leave us 
 with two systems of property law instead of one. The 
 details of the campaign it may be impossible to foresee, 
 but of the general plan there should be no doubt ; it 
 must leave us with one system of property law, and 
 one only. This is what a civilized jurisprudence 
 requires, and here, as always, scientific jurisprudence 
 is on the side of convenience and common sense. 
 What is inconvenient in fact is anomalous in law. A 
 system of law logical but inconvenient may perhaps be 
 imagined, but it cannot be realised ; it must fall into 
 confusion so soon as it is applied in practice. First 
 one exception is admitted, then another, then chaos. 
 The converse is true ; make law convenient and you 
 make it scientific. Contemplate, therefore, this reform 
 from what point of view you will, from that of the 
 jurist, from that of the farmer, from that of the land- 
 owner, from that of the plain man of sense, it is seen 
 a necessary indispensable reform. 
 
 This heir-at-law must know that the time of his 
 departure is at hand. His doom was long ago pro- 
 nounced. It was foreseen by the dramatist who 
 determined that the epilogue to The Heir-at-Law 
 should be spoken by Dr Pangloss, LL.D. and A.S.S. 
 It was foreseen even more clearly by Bentham, when 
 he said in the pages of this Review that the heir-at- 
 law must be "abandoned to the Society of Antiquaries'." 
 This is his doom, "abandoned to the Society of 
 
 ^ " Commentary on Mr Humphrey's Real Property Code," 
 Westminster Review, No. xii. Reprinted in Bentham's Works, 
 Vol. v., p. 387. See p. 405, comment on the word "heirs.'' 
 
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The Law of Real Property 201 
 
 Antiquaries " ; yes, with all his rights, privileges, and 
 appurtenances. Or if our antiquaries will not have 
 him as a gift, if there is in England no Pangloss who 
 will receive him with an apt quotation, we will hand 
 him over to the tender mercies of Gradualisten and 
 Parentelisten, who shall write monographs upon him 
 until the end of time. 
 
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THE LAWS OF WALES.— THE KINDRED 
 AND THE BLOOD FEUD\ 
 
 The Ancient Laws and Institutes of Wales, of 
 which Mr Aneurin Owen now many years ago pub- 
 lished an edition and an EngHsh translation for the 
 Record Commissioners^ have hardly hitherto received, 
 even in the Principality, the attention which is their 
 due. Englishmen having at one time somewhat too 
 greedily devoured Welsh myths are now wont to mis- 
 trust any information contained in a Welsh document, 
 and thus an indiscriminating credulity has given birth 
 to an indiscriminating scepticism. There seems really 
 very little ground for doubt that the bulk of Mr Owen's 
 three codes, Venedotian, Dimetian, and Gwentian, was 
 at one time law in Wales, or at least was thought to 
 be law. This qualification we add because it is very 
 apparent that a large part of these masses of rules is 
 neither law made by any "sovereign one or many" 
 (to use Austin's phrase), nor yet "judge-made" law, 
 nor yet again a mere record of popular customs. It 
 is lawyer-made law, glossators' law, text-writers' law. 
 That the kernel of the mass is a real old code compiled 
 by Howel the Good about the year 928 is more than 
 
 ' Law Magazine and Review, August, 1881. 
 ^ Ancient Laws and Lnstitutes of Wales, 1841. I use the octavo 
 edition, which I believe agrees in all points with the folio. 
 
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The Kindred and the Blood Feud 203 
 
 prbbable\ But our documents do not profess to give 
 us the code, the whole code, and nothing but the code. 
 By comparing the several versions which Mr Owen 
 assigns to Gwynedd (North Wales), Dyfed (South 
 West Wales), and Gwent (Monmouth), we soon come 
 to the conclusion that they have been made at different 
 times, in different parts of the country, and that the 
 makers thereof have held themselves free to gloss, to 
 rearrange, and to introduce new matter. The relation 
 of these versions to the real ancient code is probably 
 much the same as that of the compilations which bear 
 the names of Edward the Confessor, William the 
 Conqueror, and Henry the First, to the codes and 
 statutes of Cnut and his West-Saxon predecessors. 
 Between the Norman Conquest and the reign of 
 Henry the Second, there lies a time in which it 
 must have seemed likely that the future of the law 
 of England was committed to glossators and text- 
 writers. This period was brought to a close by 
 Henry's vigorous legislation. But in Wales there 
 was no one to issue assises or constitutions. Much 
 as the later Welsh lawyers must have added to their 
 ancient code, they hardly ever refer to any subsequent 
 legislation. Only fitfully, now and again, were the 
 Welsh people united under one chieftain, and then 
 for the purpose of war, while even in each separate 
 kingdom or principality the king or prince can have 
 had but small legislative power. The care of the laws 
 belonged not to kings or princes, but to lawyers. It 
 was for them to explain, and in explaining to develope 
 
 ' Haddan and Stubbs, Councils and Ecclesiastical Documents, 
 vol. I., p. 211. 
 
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204 The Laws of Wales 
 
 the ancient law. In this there is nothing strange. The 
 really strange thing is that during the period of English 
 history which ends with the Conquest, we hear so very 
 little of "law-men," so very much of real legislation \ 
 For this we have to thank the energetic line of West- 
 Saxon Kings and very possibly the influence of the 
 Frank Empire. In Wales, where no great family 
 succeeded in gaining a permanent, unquestioned, ir- 
 resistible supremacy, there arose a special class of men 
 learned in the laws, a class quite comparable to that 
 of the German and Scandinavian "law-men," and the 
 Irish " Brehons," and it is not unworthy of note that 
 the one great Welsh law-giving King, Howel the Good, 
 whose code was universally regarded as the very core 
 of Welsh law, was himself a tributary of the English 
 iEthelstan. 
 
 From what has been said it will be easily under- 
 stood that the materials provided by the Ancient Laws 
 and Institutes of Wales should only be used with the 
 greatest caution. They are of very uncertain date ; 
 even the dates of the MSS. (and they are numerous) 
 from whence they are taken have not yet been assigned 
 with much accuracy. Again, though in the main they 
 are far more consistent than we might expect, it is 
 sometimes very difficult, or perhaps impossible to 
 harmonise them even when they touch on matters 
 of considerable importance. Clearly the first qualifi- 
 cation which should be required of any one who would 
 
 ^ Curiously enough one of the few passages in the Anglo-Saxon 
 authorities which mentions " law-men " is a-provision for the admini- 
 stration of justice between Englishmen and Welshmen, the " ordinance 
 respecting the Dunsetas.'' 
 
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The Kindred and the Blood Feud 205 
 
 deal with these materials thoroughly and scientifically 
 must be a very competent knowledge of the Welsh 
 language, its dialects and its history, and the second 
 must be a large acquaintance with other old systems of 
 law, for it is at once apparent that this mass of Welsh 
 rules has many and strong resemblances to other 
 masses of ancient law, and in such other masses a 
 sound criticism would find many of its best weapons. 
 But even to one who boasts no such equipment, and 
 who is wholly dependent on Mr Owen's English ver- 
 sion, there are certain things fairly clear and very 
 interesting in these documents, and such an one now 
 submits to his readers a brief account of what seems to 
 him a very noticeable part of the system described in 
 the Welsh laws^ 
 
 A fact which at once strikes us is that very great 
 importance is attached to nationality. The pure- 
 blooded Welshman has many privileges which he does 
 not share with any foreigner, or with any one who is 
 tainted by foreign blood. We constantly read of aliens 
 and foreigners, and seemingly a considerable part of 
 the population was, or was deemed to be, of alien 
 descent. But with scarce an exception the alien is a 
 villein ; not indeed a slave or bondsman, for below 
 these alien villeins there is a yet lower class of real 
 slaves, whom the Welsh lawyers constantly compare 
 to the beasts that perish and lie unavenged ; but still 
 the alien is unfree, is a villein, and the very word 
 villein has made its way into Wales. In all respects 
 
 ' I cite the three Codes as Ven., Dim., and Gwent., respectively by 
 Book, Chapter, and Section, and the remaining tracts as Bk. iv., v., 
 etc., here again giving Chapter and Section. 
 
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2o6 Th^ Laws of Wales 
 
 he is on a lower level than the pure-blooded Welsh- 
 man. How strict are the notions entertained concern- 
 ing purity of blood may be seen from the provisions 
 which permit the alien, whose ancestors have for 
 several generations been settled in Wales, to become 
 a true Welshman. According indeed to one authority, 
 but one which seems open to, suspicion or worse, no 
 less than nine generations are requisite to purge out 
 the stain of foreign blood, and thus a period of nearly 
 three centuries may elapse before a true Welshman is 
 born of a foreign stock \ This is probably exaggera- 
 tion, but more trustworthy authorities agree that long 
 settlement in Wales is necessary, the number of gene- 
 rations requisite being apparently three". 
 
 On hardly any point is there so striking a difference 
 between the Welsh laws and the earliest English laws 
 that have come down to us. In England, to all 
 appearance, law very rapidly became territorial, and 
 he was a West-Saxon who lived in Wessex. It may 
 well be that for some time after the Teutonic invasion, 
 Jutes, Angles and Saxons thought of their laws as the 
 laws of their race, not of their territory. In Ine's code 
 the Welshman, even when no slave, is clearly not on a 
 level with the West-Saxonl He has a smaller wer, 
 probably an altogether inferior status. But Ine's code 
 belongs to the seventh century, and there must have 
 been many Welshmen in his dominions who had be- 
 
 ' Bk. XIII. 2, §.66, 67. This thirteenth book seems to me the 
 least trustworthy of all the authorities, and such I understand is the 
 opinion of better judges. 
 
 2 Bk. V. 2, § 123, 126, 144. 
 
 ' Ine 23, 24, 32, 33, 46. (1 cite the Anglo-Saxon Laws from the 
 second edition of Schmid's Gesetze.) 
 
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The Kindred and the Blood Feud 207 
 
 come his subjects not by birth but by conquest. No 
 such distinction appears in our next code, that of 
 Alfred, and from that time onwards the laws hardly 
 mention the Wealh', though a large portion of the 
 population of the south-western counties must have 
 been of British descent, and must have spoken a 
 Celtic tongue. So again after the Danish invasions, 
 " the Danes' law " seems to have rapidly become 
 territorial, and indeed the phrase became the name 
 of a territory^ Nowhere do we hear anything of the 
 strange system of " personal law," as it is called, or of 
 tribal or national law as we might better call it, which 
 prevailed on the Continent and which allowed the 
 Frank to carry about with him his Salic or Ripuarian 
 law into Saxony or into Lombardy or wherever he 
 might go. Probably what distinguished England from 
 the Continent was this : that on the mainland there 
 was one system of law utterly different from the cus- 
 toms of any of the German tribes, the Roman law. 
 The Church was deeply interested in its preservation, 
 and the clergy secured from their conquerors and con- 
 verts the privilege of retaining their old law. This 
 made a nucleus, round which an elaborate system of 
 "personal law" arose, each man keeping wherever he 
 
 ' ^thelstan, vi. 6. ^thelred, ii. 6. 
 
 ^ It still, I imagine, gives its name to the Hundred of Dacorum 
 in the County of Hertford. This means the Danes' hundred, for 
 our ancestors thought it classical to call the Danes, Dad. This 
 hundred perhaps got its name as being the only district south-west of 
 the Watling Street, which was under the Danes' law. That law we 
 are told extended to the Watling Street and eight miles further. This 
 would nearly include the hundred , in question. i^Leges Edwardt 
 Confess oris. 30 (27).) 
 
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2o8 The Laws of Wales 
 
 might be the law to which he was born. In England, 
 Roman institutions perished, and the British Church 
 gained no hold over the invaders. But be the ex- 
 planation what it may, the Danes' law rapidly became 
 the law, not of men of Scandinavian descent, but of 
 Eastern and Northern England. Even the Norman 
 Conquest, deeply as it affected the history of our law, 
 placed no new nation alongside of the English. The 
 privileges which belonged to Normans as Normans 
 were very few. At last we find the Common Law of 
 England so utterly careless concerning purity of blood 
 that it holds every man an Englishman if born in the 
 English king's dominions, an alien if born elsewhere. 
 Very different is this from the Welsh law with its 
 excessive care for pure Welsh nationality. 
 
 To refer this difference to an ultimate difference in 
 national character would be rather easy than satisfying. 
 Before so doing we should remember that the English 
 conquest of Western Britain must have done much to 
 make the Welsh law the law of a race not of a territory, 
 and to keep alive the memory of pure Cymric descent. 
 The Welsh had an outstanding claim to the whole of 
 Britain, and to no narrower territory could their law 
 attach itself. In the struggle against English invasion 
 they became an exclusive people. 
 
 The same causes which made for the preservation 
 of a national as opposed to a territorial ideal of the 
 state, must have aided the retention in Wales, down to 
 the very last days of Welsh law, of an organisation of 
 society for legal purposes by kindreds and families. 
 No one will now be surprised to find traces of a time 
 when the kindred or clan and not the individual was 
 
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The Kindred and the Blood Feud 209 
 
 the true unit of the legal system. But in Wales, so 
 long as Welsh lawyers continued to write about Welsh 
 law, that time had not wholly passed away. The 
 kindred or clan was, to use a phrase but little too 
 technical, a corporation having rights and duties in 
 its corporate capacity, not indeed a corporation created 
 by law, but one which the law must recognise. The 
 constitution of these kindreds and their corporate rights 
 and duties are a matter well deserving of observation, 
 and we may be pardoned for speaking of them at some 
 length. 
 
 The kindred [cenedl) must have normally been a 
 body of considerable size, for fifty of its full grown 
 male members were often required to act in common, 
 and in some cases even three hundred. It is a body 
 of kinsmen tracing their descent from a common an- 
 cestor, and there are some signs of a theory that all 
 these kinsmen are distant from -the common ancestor 
 by at least three generations. A family of aliens is 
 not a kindred until at least a certain number (some 
 say nine) generations have passed away. One curious 
 passage suggests that, according to the current notion, 
 this is the way in which all kindreds have been formed \ 
 After aliens have remained in the country for the due 
 time a Welshman is born, and he becomes the head of 
 the kindred, and he is not in law called the son of his 
 father being rather his father's father in the law'. 
 
 The relationship between the members of a kindred 
 was normally a real blood relationship, but we read of 
 nine methods "by which strangers can become rela- 
 tions'," Each of these consists of some great service 
 ' Blc. V. 2, § 144. °- Bk. xni. 2, § 66, 67. ' Bk. x. 2. 
 
 M. 14 
 
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2IO The Laws of JVales 
 
 done to a kindred, espousing its cause in a blood feud, 
 or the like, and the benefactor thereby becomes a 
 member of the clan which he has benefited. There 
 are other passages which show that similar legal fictions 
 were not unknown. The lord who takes by escheat 
 becomes the son of the dead man', and as already said 
 a man may be his own father's father. But normally 
 the bond of union was blood relationship, and that 
 agnatic. The bond of kindred was closely connected 
 with the possession of land, and though there is some 
 slight conflict between our various authorities, it seems 
 perfectly plain that according to the oldest law, and 
 the law which prevailed in Gwynedd down to the time 
 of Edward the First, no woman could in any case 
 inherit land". In three quite exceptional cases she 
 could transmit to her sons a right to inherit her father's 
 land along with her brothers. It is constantly assumed 
 that it is the duty of a woman's kinsmen to give her in 
 marriage where her sons may obtain a paternal inherit- 
 ance. If they fail in this duty her sons will inherit 
 through their mother. If a Welshwoman be given in 
 marriage to an alien, if she be given as a hostage into 
 a foreign land and there marry, if she suffer rape by an 
 alien, her sons will inherit with their maternal uncles 
 and be members of their mother's kin'. These (with 
 
 ' E.g., Ven. II. 6, § 28. 
 
 ^ The Bishop and Chapter of St Asaph, stating their grievances 
 against Llywelyn (a.d. 1276), say, " Mulieribus et si alii heredes 
 deficiant, jus successionis hereditarie immo denegat. Set hoc con- 
 suetudo patrie est." This admission seems conclusive. See also the 
 Statute of Rhuddlan, and Ven. 11. 15, § i. 
 
 - ^ Ven. II. 15, § 1-4. The same rules with slight variations occur 
 in many other passages. 
 
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The Kindred and the Blood Feud 2 1 1 
 
 oiie other to be hereafter mentioned) are the exceptional 
 cases, and in all others it is through males and only 
 through males that relationship is traced. 
 
 A man therefore belongs not to many kindreds, but 
 to one kindred, namely, that to which his father belongs. 
 But it is a very noticeable fact that marriage did not in 
 Wales, any more than in England, take a woman out 
 of her own kindred and transfer her to that of the 
 husband. Here we can only notice this fact, hoping 
 to return thereto at a more convenient season. How- 
 ever, plain it is that in Wales, as in England, the wife 
 remained a member of her own kindred'. But though, 
 as already said, a child normally belongs to his father's 
 kin, there are exceptions to this rule. Owing to the 
 somewhat loose notions of marriage and legitimacy 
 which prevailed in Wales, it was not always easy to 
 determine who a child's father was. Apparently the 
 son even of a common prostitute^ is not a child without 
 a father. If the mother can affiliate him he becomes a 
 member of his father's clan. If the attempt to affiliate 
 him be unsuccessful (and no more than one attempt is 
 ever allowed), he becomes a member, and seemingly a 
 perfectly legitimate member of his mother's clan. For 
 him, as for the most lawfully begotten of children, a 
 wergild (or galanas) is payable, and there being no 
 father's kindred a greater share than usual is paid to 
 the maternal relatives^ If the man on whom a child 
 is fathered be living, he may free himself by solemn 
 oath'. If he be dead then the matter rests with his 
 
 1 Legg. Henr. Primi 70, § 12, and Schmid, Anhang vi. § 7. 
 ' "A woman of bush and brake," Gwent. 11. 39, § 4°- 
 = Ven. II. 31, § 7, 8. ^ ibid., § 4- 
 
 14 — 2 
 
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212 The Laws of Wales 
 
 kindred. Here we see the clan and its chieftain in 
 full activity and get a glimpse of the organisation. 
 The chief with six of the clan may go to the church 
 and there by oath repudiate the child, and seven other 
 members must swear that the oath is pure. If there 
 be no chief, the men of Gwynedd require the oaths of 
 twenty-one kinsmen, while in Powys and Dyfed there 
 must be fifty swearers. Provision, however, is made 
 to prevent the denial being given by those whose 
 interest conflicts with their duty. Those with whom 
 the child would be entitled to share the paternal in- 
 heritance are disqualified to repudiate him. Until 
 solemnly repudiated the child is "a son by sufferance,' 
 and the clan must pay if he commits manslaughter, but 
 have no claim if he be slain, having as it were tlie 
 burden but not the benefit of being related to him\ 
 A solemn and impressive form of adoption is provided. 
 The chief and six of the best men may acknowledge 
 the child. The chief takes the child's hands within his 
 own and kisses it, then places its hands within those 
 of the oldest of the other men, who kisses it, "and so 
 from hand to hand until the last man." If there be no 
 chief, the ceremony is performed by twenty-one (accord- 
 ing to others, fifty) of the clan's best men^ 
 
 Over the clan there presides a chieftain [pencenedl). 
 Concerning the title by which he holds his power, the 
 more trustworthy sources give us but little and that 
 negative information. It is not a hereditary title. 
 " A son is not to be chief of kindred after the father 
 
 ' Ek. V. I, § 7. Bk. V. 2, § 82. 
 
 ^ Ven. II. 31. Dim. 11. 8, § 30. Gwent. 11. 39, § 40. Bk. x. 7, 
 § 4. Bk. XIII. 2, § 120. • . 
 
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The Kindred and the Blood Feud 213 
 
 in succession, for chief of kindredship is during life\" 
 From this we may infer that though not deemed 
 hereditary, such it was tending to become ; and this 
 is probable, for from the same source we learn that the 
 nobility of the chief extended to the members of his 
 family, their galanas, or as the English would have 
 said wer, being greater than that of the mere non- 
 noble free man^ Less trustworthy authorities are 
 richer in information. "A chief of kindred is to be 
 the oldest efficient man in the kindred to the ninth 
 descent^" How far this requirement was actually 
 fulfilled in practice we cannot say, nor is it impossible 
 that age was reckoned in some artificial manner which 
 represented the members of an older line as them- 
 selves older than members of younger branches, for by 
 such means a transition may have been made to that 
 hereditary transmission of the office against which the 
 law expressly provides. 
 
 The chief's position is one of honour and privilege. 
 In the Welsh laws, as in other ancient systems, every 
 man has his price, the price which must be paid for 
 him in case he be slain. In Wales this price is called 
 galanas, and like the wergild of the Teutonic nations, 
 it fixes a man's station in society*. Now the galanas 
 of the chief is according to the Venedotian Code, 
 " nine score and nine kine once augmented^" Con- 
 
 ^ Gwent. 11. 40, § 10. ^ Gwent. ii. s, § ii- Dim. n. 17, § 23. 
 
 ' Bk. XIII.. 3, § 88. 
 
 * The sa.va& word galnes or galnys occurs in the old Scotch Regiam 
 Majestatem. {Ads of Parliament of Scotland, pp. 273, 276, 300.) 
 Seemingly it means murder, slaughter. 
 
 ° Ven. III. I, § 27. 
 
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214 The Laws of Wales 
 
 cerning the phrase "once augmented" we can only 
 here say that it seems to mean that the sum named is 
 to be increased by one-third of itself. The chief's 
 value therefore is 252 kine. He is thus ranked on a 
 level with the highest of the king's servants or officers 
 of state, the steward, the chancellor, and the chief 
 huntsman. The value of the mere Welsh free man 
 according to the same system is 63 kine\ In the 
 other codes the difference between the chief and the 
 free man is still greater, the life of the one being 
 apparently nine times as valuable as that of the other^ 
 In short, no one is more honourable than the chief of 
 a clan, save only the king, queen, heir apparent to the 
 throne, and the chief of the royal household, for even 
 the king has his price in Wales, as in England and in 
 Scotland. 
 
 Many other payments are regulated by the amount 
 of a man's galanas, for instance, his saraad or honour 
 price, the sum he receives if insult be done him, the 
 ebediew, relief or heriot payable on his death, the 
 amobyr or fine for leave to marry his daughter, and 
 the cowyll or morning-gift and agweddi or dower to be 
 provided by her husband. Thus his galanas fixes a 
 man's general status, just as in England many legal 
 consequences depend on the amount of a man's wer. 
 Judging by this standard, the chief's position is honour- 
 able and exalted. He enjoys other privileges and 
 immunities. He x^z€\v^?, galanas for the death of a 
 kinsman, but does not pay^ He is entitled to twenty- 
 
 ^ Ven. III. I, § 31. 
 
 ^ Dim. II. 17, § 21, 27. Gwent. 11. 5, § 9, 15. 
 
 ^ Gwent. II. 39, § 14. 
 
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The Kindred and the Blood Feud 215 
 
 four pence from every youth admitted to the kindred, 
 and to twenty-four pence from every kinsman who 
 places a woman under his protection \ To slay him 
 is among the gravest crimes ^ In all matters which 
 concern the clan he takes the lead, and if in " counsel- 
 ling " a kinsman he has recourse to a blow, that blow 
 may not be redressed'. 
 
 Thus much we have on good authority. The 
 Triads of Dynwal, to which we refer with very much 
 less confidence, ascribe to the chieftain vast political 
 and constitutional importance. For instance, it is by a 
 chief of kindred that an assembly may be convoked for 
 the deposition of an unjust king\ These Triads bring 
 out very strongly the theory, doubtless the old traditional 
 theory, that the Welsh nation is constituted, not of indi- 
 viduals, but of kindreds each under its own chief. But 
 they are poetic and vague, and probably in their present 
 form of little value as evidence of fact, though of much 
 value as evidence of ideals and aspirations. They leave 
 the impression that the kindred for many purposes, both 
 civil and constitutional, acts as a body, being in some 
 sort represented by its chief Also the chief has large 
 though rather indefinite powers in the internal govern- 
 ment of the kindred and the direction of its affairs, 
 " Every one of the kindred is to be a man and a kin 
 to him, and his word is paramount to the word of every 
 one of the kindred\" " Three things, if possessed by 
 a man, make him fit to be a chief of kindred ; that he 
 should speak on behalf of his kin and be listened to ; 
 
 ' Ven. II. 19, § I, 2. ' Dim. ii. 8, § 8. 
 
 ^ Dim. II. 8, § 2o. " Bk. xiii. 2, § 62. 
 
 ^ ibid., § 165. 
 
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2i6 The Laws of Wales 
 
 that he should fight on behalf of his kin and be feared ; 
 and that he should be security on behalf of his kin and 
 be accepted'." "It is the duty of every man of the 
 kindred to listen to him, and for him to listen to his 
 man''." We are told more definitely that he is entitled 
 to maintenance from the ploughs of the kindred ^ He 
 also has the privilege of imprisonment, whatever that 
 may mean\ He is assisted by a council of seven 
 elders, also by a " representative " of the kindred, and 
 by one who bears the ominous title of "the avenger'." 
 The avenger punishes evil doers and leads the kindred 
 to battle. This must imply important duties, for it is 
 as a corporation capable of making private war that 
 the kindred retains its chief importance in Welsh law. 
 The "representative" must we are told be a learned 
 man. It is for him to act as the chief's deputy, and we 
 must regard him as the kindred's peace-maker, nego- 
 tiator, and man of business. To the existence of the 
 council of seven elders, the avenger, and the representa- 
 tive there is testimony in the "codes," but hardly anything 
 is there said of their qualifications, rights, or duties". 
 
 Though there is some evidence that the kindred as 
 a corporate body is still capable of possessing property, 
 it is chiefly in the sphere of criminal law, or what we 
 should consider the sphere of criminal law, that it finds 
 scope for its corporate activity. The whole subject of 
 Welsh criminal law is well deserving of examination, 
 but here it is only necessary to premise a brief explana- 
 tion, and one which will hardly surprise those who are 
 
 ' Bk. XIII. 2, § 163. " ibid., § 88. ^ ibid., § 131. 
 
 ' ibid., § 133. " ibid, § 88, 162. 
 
 " Gwent. II. 39, § 38, 55. Dim. ii. 8, § 8. 
 
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The Kindred and the Blood Feud 217 
 
 acquainted with other ancient systems of law. The 
 Welsh laws in some cases inflict real punishments. 
 Most frequently these are fines or mulcts payable to 
 the king or lord, but mutilation and death are occasion- 
 ally though rarely denounced. There is a real penal 
 or criminal law. But this does not extend to what we 
 are wont to think the gravest of all crimes. It does 
 not extend to homicide. Neither manslaughter nor 
 what we call murder was, strictly speaking, a crime 
 at all. It was a legal justification for a blood feud, 
 which feud might be composed by the payment of the 
 slain man's worth or galanas, a payment of just the 
 same nature as the wergild of our own old laws. 
 Criminal or penal law, the law which does not extort 
 reparation but punishes, seems to have followed the 
 same course of development in Wales as in England. 
 It is seriously doubtful whether at any time before the 
 Norman conquest homicide, unless it was accompanied 
 by some foul and diabolic dealing which made it morth, 
 was punished in this country by anything beyond a 
 pecuniary mulct, while it is certain that the punishment 
 of death had long been freely applied in cases of theft 
 and even of petty theft'. There is some discrepancy 
 between the various Welsh authorities as to the limits 
 within which the blood feud is permissible. According 
 to one version of the Venedotian code the slain man's 
 kindred may only revenge his death on the person of 
 the slayer". Apparently, therefore, in North Wales 
 
 ' As to what constituted Morth, see Schmid, Gesetze, Glossar. 
 
 ' " No one is to be killed on account of another but a murderer. . . 
 For if the kindred disown the murderer, there is no claim upon them." 
 Ven. III. I, note, § 19. Compare Laws of Edmund. 
 
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2i8 The Lawts of Wales 
 
 that step towards the abolition of the feud had been 
 taken which in England was taken by King Edmund. 
 In this case we are able to test the value of the Welsh 
 authorities by appeal to a very trustworthy source. 
 Edward the First issued a commission to examine 
 witnesses from North Wales touching their laws V and 
 one of these gave evidence of just such a limitation of 
 the blood feud as marks the Venedotian code and 
 ascribed it to David ap Llywelyn, apparently the 
 prince of that name who died in I246^ In the other 
 codes there is certainly no such limitation. An act of 
 homicide if not duly paid for within the appointed time 
 is still a signal for private war of kindred against kin- 
 dred. That the revenge was not originally restricted 
 to the person of the slayer should be clearly understood, 
 for only thus can we understand the composition for 
 homicide whether it be called wergild or ga/anas. The 
 slayer's kindred must pay the money, not because they 
 are bound to help a kinsman out of a difficulty, but 
 
 ^ Printed by Wotton in an Appendix to Leges WalHcce. 
 
 ^ The passage is curious : — " Ithel ab Philippi juratus dicit idem 
 in omnibus cum Kenewrek prejurato, adjiciens quod Princeps potest 
 pro voluntate sua leges corrigere et in melius reformare, exemplifi- 
 cando de David ab Lewel. avo Principis nunc, qui delevit per se et 
 consilium suum le Glanas per totam Northwalliam. Videbatur sibi 
 et consilio suo quod culpa suos debeat tenere aiictores delinquentes, 
 et non alios, qui nichil deliquerint, quod aliter fieri cohsuebat colli- 
 gendo Glanas, etc." ( Wotton, p. 5 24). Apparently Edward's 
 commissioners did not understand this, for some one has written 
 in the margin of the Roll, "Inquirendum quid sit Lex Glanas. 
 Exa.minandum de ennend; Legis." We, however, have no difficulty 
 in catching the drift of the jemark. According to Ithel, David freed 
 the kin from the feud because he thought it unjust that the innocent 
 should suffer for .the guilty, '/ quod fieri consuebat." 
 
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The Kindred and the Blood Feud 219 
 
 because they themselves and every of them are liable 
 to the revenge of the slain man's clan. With the 
 money, wergild or galanas, they purchase not their 
 relatives' peace, but their own. On the payment of 
 the galanas within due time, what may fairly be called 
 a treaty of peace is concluded. Three hundred men of 
 the offended kindred swear that the slayer is forgiven, 
 and everlasting concord and perpetual amnesty are 
 established \ 
 
 Now first we must notice that though a man 
 properly belongs to one kindred only, namely, that 
 of his father, he is by no means a stranger to his 
 mother's clan. If he slay or be slain, not only his 
 paternal but also his maternal kin are involved in the 
 feud. Seemingly it is thought that his mother's kin 
 have only one-third share in him. They pay or receive 
 a smaller part of the galanas, the greater part being 
 paid or received by the father's kinsfolk. It is well 
 worthy of note, that of this rule which is firmly estab- 
 lished in Wales, we have evidence from England also^ 
 Thus there are four kindreds involved in each feud, 
 and apparently the maternal kin on the one side is at 
 war with the maternal on the other, the paternal with 
 the paternal. At least, paternal kin pay to paternal, 
 maternal to maternal ; and paternal swear peace to 
 paternal, maternal to maternal. 
 
 When we pass to more minute rules, we find that 
 these were evidently the subject of many differences of 
 opinion. We are told what "some say" and "others 
 hold," and one Welsh lawyer frankly confesses that 
 
 ^ Ven. III. I, § 16. 
 
 " Legg. Henr. Prim. 75, § 8, 9, 10. Supported by Alfred, 27. 
 
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220 The Laws of Wales 
 
 "the sharing oi galanas" is one of "the three com- 
 plexities of the law\" However, even on this dangerous 
 ground, we may take a few steps. 
 
 In the first place we must distinguish from the 
 galanas another payment, namely, the saraad. When- 
 ever a person is subjected to any injury or disgrace, 
 saraad is done to him, and must be paid for. Just as 
 every man has a certain price which must be paid if 
 he be slain, so he has a certain saraad ox, as we may 
 term it, " honour price," which must be paid if he be 
 insulted^ The latter price varies with the former. 
 Thus, if a man's galanas be three score and three kine, 
 his saraad is three kine and three score pence, the one 
 being determined by the other. Similar instances of 
 prices for minor injuries, dependent on the amount of 
 the injured person's wergild are to be found in the old 
 English laws. Now, if a man be slain, saraad is done 
 him, and must be paid for. But saraad and galanas 
 spring from different notions. The galanas is payable 
 (as in the English wer) for very much less than murder. 
 It is payable seemingly for every voluntary homicide ; 
 it is payable even in cases where a modern coroner's 
 jury would be inclined to refer death to misadventure, 
 or to the Act of God. Saraad, on the other hand, is 
 payable only for injury wilfully inflicted. The difference 
 is brought out thus : If an idiot slay a man, the idiot's 
 kindred must pay galanas, but they need not pay 
 saraad^, and such also is the case where the slayer 
 
 1 Bk. X. 7, § 27. 
 
 ^ iSaraai/ seemingly means disgrace. I borrow the phrase " honour 
 price " from the translation of the Irish laws. 
 = Bk. IV. I, § 2, 4. 
 
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The Kindred and the Blood Feud 221 
 
 is an infants To occasion saraad there must be bad 
 will ; but nothing of the sort is necessary to give rise 
 to galanas. But ordinarily, where there is homicide, 
 both payments must be made.- Now saraad is paid 
 both by and to a narrower class of relations than that 
 which pays and receives galanas. One-third is paid to 
 the slain man's widow if he leaves one and the rest is 
 divided among his near relations. Authorities differ 
 as to how near the relations must be who claim the 
 saraad. One names only father, mother, brothers and 
 sisters^ (whom we may call the household) ; another 
 names brothers, first cousins and second cousins' 
 (whom, for reasons which cannot be here given, we 
 may call the inheriting family), while others, perhaps 
 describing the practice of a latpr date, after deducting 
 the widow's third mix the rest of the saraad with the 
 galanas^. So again the saraad is paid by a narrower 
 circle of relations than those who pay galanas. Gener- 
 ally, indeed, the books speak as if the offender pays 
 the whole saraad, but it seems that at least in case of 
 his insolvency his kinsmen to the distance of second 
 cousins are liable'. 
 
 Now here again is a curious likeness to old English 
 law. The payment of the bulk of the wergild was 
 preceded in England by the payment of a sum to the 
 nearest relatives of the slain. This was the heals-fang ; 
 in the Latin versions " apprehensio colli," the taking 
 of the neck. "Heals-fang belongs to the children, 
 
 1 Bk. VI. I, § 17. 
 
 ^ Dim. II. I, § 14, 16. (In the last of these passages saraad in the 
 English version seems a mistake for galanas.) 
 
 ^ Van. III. I, § 19. * ibid., note, § 22. 
 
 = Gwent. 11. 8, § 10. Ven. in. i, § 19. 
 
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222 The Laws of Wales 
 
 brothers, and paternal uncles ; that money belongs to 
 no kinsman, except to those within the joint {binnan 
 cneowey." Our older commentators supposed that 
 heals-fang had something to do with the pillory. But 
 Dr Schmid has ingeniously suggested that it is con- 
 nected with a mode of representing the degrees of 
 relationship by reference to the various limbs of the 
 human body which was well known among the 
 Germans I It is the portion taken by those who 
 "stand in the neck," those who are within the joint 
 {binnan cneowe); more distant relations "elbow cousins," 
 " nail cousins," and the like have no share. However, 
 there are many differences between the heals-fang and 
 the saraad, and we by no means intend to suggest that 
 the resemblance between Welsh and English law is 
 <iue to any survival of British customs in England, or 
 to any influence of English upon Welsh law. 
 
 The saraad being paid, it remains to pay the 
 galanas, which is of considerably greater amount and 
 importance. Some light on its distribution is thrown 
 by the strange number which the Welsh took as the 
 unit of galanas. When these laws were written, the 
 use of money, at least as a means of reckoning, had 
 become common ; but the galanas, an old traditional 
 payment, is always expressed in terms of cattle. The 
 unit of galanas, if we may so speak, the worth of a 
 mere free man, is " three score and three kine," more 
 noble persons being valued at " six score and six," or 
 
 ' Schmid, Anhang vii. (In the Record edition this is printed at 
 the end of the laws of Edward and Guthrum.) 
 
 ^ Schmid, Glossar. Heals-fang. Grimm, Deutsche Rechts Alter- 
 thiimer, pp. 468-470. 
 
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The Kindred and the Blood Feud 223 
 
 " nine score and nine." Now the number 63 is not 
 only the product of two very sacred numbers, 7 and 9, 
 but it is also the sum of the geometrical series 1 + 2 + 4 
 to six places. Six persons or classes of persons can 
 pay 63 cows, the first person or class paying one cow, 
 the second twice as much, the third twice as much 
 again, and so forth. Apparently it was this property of 
 the number which gave it a place in the galanas system. 
 
 So far as we can see the burden of paying galanas 
 was borne thus^ : — Divide the whole sum by three ; 
 one of the three parts falls on the slayer and his 
 nearest relations, whom we will call his household. 
 Of this the slayer himself pays one-third, his father 
 and mother one-third, his brothers and sisters one-third, 
 the father paying twice as much as the mother, and a 
 brother twice as much as a sister. The remaining two- 
 thirds of the whole sum are again divided by three, 
 two-thirds falling on the paternal, one-third on the 
 maternal kindred. Of each kindred, six classes of 
 relations pay, the first class paying twice as much as 
 the second, and so on. It will be seen that if the total 
 sum be sixty-three, the class which pays least must 
 provide the third of a cow ; while if the full galanas be 
 "nine score and nine," the class which pays least is 
 liable for just one cow. 
 
 The mode of computing the degrees of relationship 
 
 ^ The passages most in point are, Ven. in. i, and the version in 
 the notes to that chapter, Dim. ii. i, Gwent. ii. 8, Bk. iv. 3, Bk. x. 3. 
 The account in the text is compiled from these, and is not exactly 
 borne out by any one of them. The discrepancies, however, seem 
 due rather to imperfections of statement than to any difference of 
 principle. 
 
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224 T^^^ Laws of Wales 
 
 seems to be "parentelic," that is to say, my father and 
 all his issue constitute a class or parentela, but these, 
 since they take the household's third, are not one of 
 the six. The first of the six consists of my grand- 
 father and his issue, other than my father and his 
 issue ; the second consists of my great-grandfather and 
 his issue, other than my grandfather and his issue. 
 Thus a sixth cousin is in the last class which pays 
 or receives galanas. A mode of reckoning some- 
 what similar to this was apparently prevalent in Eng- 
 land also\ and indeed is still involved in our law of 
 inheritance, which exhausts my father's issue before it 
 passes to the next parentela^. 
 
 The right to receive galanas is governed by much 
 the same rules. There are, however, differences. In 
 the first place, the lord at the time of which these laws 
 speak takes one-third of the whole for his trouble in 
 exacting payment. Then, again, the slain man of 
 course receives nothing, and, consequently, the house- 
 hold's share is somewhat differently distributed. But 
 the most curious point is that a woman pays but does 
 not receive galanas. The notion seems to be that she 
 pays as representing her infant, or yet unborn children ; 
 for a woman who is past child-bearing, or will swear that 
 she will never have children, is exempt, and if she have 
 children of full age she is absolved by their payment'. 
 
 ' Schmid, Glossar., Cneow. 
 
 ' But there are many difficulties about the Welsh reckoning which 
 I cannot pretend to have solved. Vent. ii. i, § 12. Dim. 11. i, 
 § 17-29. Gwent. II. 8, § 1-7. Bk. iv. 3. It is, however, much more 
 intelligible than the Irish. 
 
 ' Ven. III. I, § 21-23. Van. ii. i, § 64. 
 
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The Kindred and the Blood Feud 225 
 
 In cases where she pays she is only liable for one-half 
 of a man's share \ 
 
 Apparently each class of relatives is liable to pay 
 or entitled to receive the whole sum allotted to it, how- 
 ever few or many be the members of the class. Beyond 
 the relatives bound to pay galanas stand yet remoter 
 kinsmen who, if the sum cannot be otherwise raised, 
 are bound to contribute a "spear penny," and can only 
 escape by swearing that they are of no kin to the 
 slayer^ But all these rules are probably only rules 
 apportioning the burden as between various members 
 of the kindred. If the whole sum be not paid then 
 there is war between the kindreds, even though certain 
 members of the offending clan have been ready with 
 their contribution — such at least must have been the 
 old rule, though, doubtless, it was mitigated in course 
 of time. 
 
 We have already noticed the resemblance to 
 English law in the distribution of the burden and 
 benefit of the composition between paternal and 
 maternal kin in the proportion of two to one. A 
 division of the wer into three parts, one of which is 
 paid by the household, one by the father's and one by 
 the mother's kin, is found in the Lex Salica^. There 
 is, however, little to be gathered from the so-called 
 Leges Barbarorum concerning the mode of distributing 
 the wer, and not much more to be gathered from the 
 Anglo-Saxon authorities. Owing to the power in one 
 case of the Frank Empire, in the other of the West- 
 
 ' Ven. II. I, § 64. Dim. ii. i, § i6. ^ Ven. iii. i, § 13. 
 
 ' Lex Sal—De composit. homicid. (Hessel's and Kern's ed., 
 388-396). 
 
 M. IS 
 
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226 The Laws of Wales 
 
 Saxon house, the old wer-gild system rapidly gave 
 way before a system of punishment, and it is to the 
 extreme north of Europe that we must look for any 
 body of rules so complicated as the Welsh. The 
 Scandinavian lawmen seem to have delighted as did 
 the Welsh in elaborating the scheme, and anyone who 
 will turn to Wilda's Strafrecht der Germanen will find 
 a parallel for nearly every Welsh rule in some authority 
 Icelandic, Norwegian, Swedish or Danish'. For 
 instance, in the East Gothlanders' law, as in the 
 English, as in the Welsh, the paternal kindred pay 
 twice as much as the maternal, while (and this is 
 very remarkable) the West Gothlanders' law has the 
 rule that six classes of relations pay, each paying twice 
 as much as the one which is one degree more distant^ 
 It is plain that since every manslaughter involved 
 four kindreds in the feud, some nice questions might 
 arise from the mutual interference of family obligations. 
 A man might be called on to support his mother's kin 
 in a feud against his father's kin. Such a case is 
 actually provided for, and in the strangest fashion. If 
 a man slay another of his own kindred he has to pay 
 to the kindred the galanas of the slain, and in this case 
 he alone is liable, for the kindred cannot pay to itself ^ 
 He also forfeits his patrimony, and doubtless the law 
 
 ^ W. E. Wilda, Strafrecht der Germanen, p. 372 f. It seems to 
 me that many, if not most of the writer's conclusions concerning the 
 early stages in the development of criminal law, though derived 
 entirely from Teutonic sources, hold good also as to Welsh law. It 
 is much to be regretted that of early Scotch law we have but the 
 merest fragments, and at present it is hardly safe for any but an Irish 
 scholar to speak of Irish law. 
 
 ^ Wilda, p. 379. ■* Gwent. 11. 37, § 2. 
 
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The Kindred and the Blood Feud 2,2^1 
 
 affords him but little protection against the justice 
 more or less irregular of a domestic forum ; but law- 
 fully he may not be slain " since the living kin is not 
 killed for the sake of the dead kin\" Now if a man 
 in avenging the death of a maternal relation kill one 
 of his own kindred and thereby forfeit his patrimony, 
 he is to be allowed an inheritance from his maternal 
 grandfather^ Perhaps there is no more striking 
 example of the queer mixture of barbarism and logic 
 which characterises these Welsh laws. One of the 
 few exceptional cases in which a woman can transmit 
 inheritance to her son is where that son is a murderer. 
 Even long after the English had finally mastered 
 Wales, and when there could no longer be any talk of 
 the blood feud as a legal mode of redress, the payment 
 and receipt oi galanas continued. In the same way in 
 England, long after Edmund's legislation and long 
 after the Norman conquest, we hear of men paying 
 and receiving the wer-gild. Among the Welsh au- 
 thorities there is a book of precedents for pleaders, 
 seemingly of as late date as the reign of Edward the 
 Fourth. This contains " a plaint of galanas!' " This 
 is the plaint of John, son of Madog, &c., on account of 
 there being two parts on behalf of the father, and the 
 third on behalf of the mother of John, son of David, 
 to whom came Maredudd, son of Phylip, and caused 
 death to that said John." It then states with good and 
 sufficient pleader's verbiage how Maredudd dealt with 
 the said John, making "an unjust and public attack 
 through wrath and anger, and animosity, and surrep- 
 
 ' Gwent. n. 39, § 54. 
 Dim. n. 8, § 21. Gwent. n. 39, § i. Bk. ix. 30, § i. 
 
 15—2 
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228 The Laws of Wales 
 
 tion, and disrespect, to the lord, and to the dominion, 
 and to the kindred." It demands the payment of three 
 marks, the worth of a free privileged uchelwr (gentle- 
 man). It is addressed to "the governors," for "the 
 law has not apportioned to the lord a share in the 
 worth of anyone, but by causing the inquiring party 
 [the plaintiff] to obtain the whole\" 
 
 One more testimony to the endurance of the blood 
 feud shall be given, and this from an unimpeachable 
 source, namely, the English Statute Book. First we 
 must notice that if a man be charged with slaying 
 another and wish to deny the accusation, he can do 
 so. The Welsh law, like other old systems, recognizes 
 compurgation as the usual mode of trial, or rather of 
 defence, in criminal cases. The number of compurga- 
 tors required is very large, far larger than any of which 
 we hear in England or on the Continent. In the case 
 of homicide, the number of men who help the accused 
 in " making his law " is no less than three hundred, 
 and they must be men of his kindred. " The oaths of 
 three hundred men of a kindred are required to deny 
 murder, blood, and wound, and the killing of a person," 
 and therefore, the law adds, the same number of oaths 
 is required when galanas is paid and peace thereupon 
 sworn. Now a Statute of the year 141 3 (i Henry V., 
 c. 5), refers to the then late rebellion in Wales and 
 complains that the Welshmen are still taking revenge 
 for the deaths of their kinsmen against the king's faith- 
 ful lieges, and some of such lieges they keep in prison 
 until they have paid ransom, or until they have purged 
 themselves of the death of the said rebels so slain 
 
 ' Bk. XII. II. 
 
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The Kindred and the Blood Feud 229 
 
 as aforesaid, "par un assach^ selonc la custume de 
 Galles, cest a dire par le serement de ccc hommes." 
 The fact is that the Welshmen had been acting accord- 
 ing to their notions of law and requiring three hundred 
 compurgators. This is not the only instance in which 
 our Statute Book bears out the testimony of the Welsh 
 laws, but here, at least for a time, we must take leave 
 of the Kindred and the Blood Feud. 
 
 ^ Asach. An oath, a troth. Pughe's Welsh Dictionary. 
 
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THE CRIMINAL LIABILITY OF THE 
 HUNDRED\ 
 
 The practice of making a district answerable for 
 crimes committed by its inhabitants, or of making a 
 group of men answerable for crimes committed by a 
 member of the group was at one time thought to be 
 of vast antiquity. The institution which the Norman 
 lawyers called frank-pledge, and which has lately, per- 
 haps for the last time, found mention in our statute 
 book, was regarded as much older than the Norman 
 Conquest, and indeed as one of those institutions 
 which might safely be ascribed to King Alfred or to 
 primitive man according to the taste of the ascriber. 
 Recent investigations however have thrown doubt, or 
 more than doubt, on its claims to so long a pedigree. 
 Professor Stubbs speaks of it thus '' : — 
 
 " This institution, of which there is no definite 
 trace before the Norman Conquest, is based on a 
 principle akin to that of the law which directs every 
 landless man to have a lord who shall answer for his 
 appearance in the courts of law. That measure, which 
 was enacted by Athelstan^, was enlarged by a law of 
 Edgar^ who required that every man should have a 
 
 ^ Law Magazine and Review, 1881-2. "^ Const. Hist., § 41. 
 ' Athelstan, 11. 2. " Edgar, in. 6 ; iv. 3. 
 
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The Criminal Liability of the Htmdred 231 
 
 surety who should be bound to produce him in case of 
 Htigation, and answer for him if he were not forth- 
 coming. A law of Canute^ re-enacts this direction, in 
 close juxta-position with another police order ; namely, 
 that every man shall be in a hundred and in a tithing; 
 where the reference is probably to the obligation of 
 the hundred and the tithing to pursue and do justice 
 on the thief. The laws of Edward the Confessor, a 
 compilation of supposed Anglo-Saxon customs issued 
 in the twelfth century, contain a clause on which the 
 later practice of frank-pledge is founded, but which 
 seems to originate in the confusion of these two clauses 
 of the law of Canute." 
 
 Having given the substance of this well-known 
 clause, well-known because it is the foundation of all 
 that was written touching frank-pledge from Bracton's 
 day onwards. Professor Stubbs thus sums up the 
 evidence : — " There is no trace of any similar institu- 
 tion on the Continent, or even in England, earlier 
 than the middle of the twelfth century, although, as 
 has been said, it would not be strange to the legisla- 
 tion of the Conqueror." Not strange to the legislation 
 of the Conqueror because not unlike the law ascribed 
 to him fining the hundred in which a Frenchman was 
 found murdered. 
 
 It would be rash to dispute, nor have I any inten- 
 tion of disputing the sentence thus pronounced, a 
 sentence which bears the authority not only of the 
 great historian from whose book it has been cited, but 
 the authority of almost all those who in these days 
 have been at pains to search out the origin of the 
 ^ Canute, ii. 20. 
 
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232 The Criminal Liability of the Hundred 
 
 curious institution in question. But there is evidence, 
 and that of a very remarkable kind, in favour of the 
 supposition that even before the Conquest the practice 
 of fining a district for the offences of its inhabitants 
 obtained at least in one part of England, and so far as 
 I am aware that evidence has never yet received the 
 notice that it deserves. It does not explain the frank- 
 pledge in its later shape, the shape which it bears in 
 Bracton's treatise, but unless it be the outcome of some 
 mistake, it does show that the common responsibility 
 of a group of men for the crimes committed by one of 
 their number was an idea familiar in England before 
 William of Normandy landed upon our shore. 
 
 In the first place we must refer to Doomsday Book. 
 As is well known there are scattered about in this 
 great rent roll some brief notices of English criminal 
 law. We are told what are the forisfacturce which the 
 king enjoys in this and that county, in other words, 
 what according to local custom are the pleas of the 
 crown, criminal justice being from the royal point of 
 view a source of income. We know from Canute's 
 code^ that the number of these pleas which were 
 considered as inalienable rights of the crown was 
 very limited ; but still there were certain crimes, 
 which (save where some more than ordinary franchise 
 had been granted) brought profit to the king himself. 
 Among these was breach of the king's special peace or 
 protection [gritk or mund), not a mere breach of the 
 general peace [frith) which existed at all times and in 
 all places, but a breach of the peculiar peace which 
 surrounded the king's person and dwelling, or had 
 ^ Canute, 11. 12-15. 
 
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The Criminal Liability of the Hundred 233 
 
 been granted by his letters of safe-conduct, or in some 
 other manner specially proclaimed. Now the brief 
 notices in Doomsday of these placita coronce are for 
 the more part so thoroughly in harmony with all that 
 we know of the native English law, that they seem 
 trustworthy evidence of that law, even when other 
 authority fails us. But concerning breach of the king's 
 special peace they tell us what is very remarkable, 
 and it may be well to repeat their substance at some 
 length. 
 Berkshire^. — If any one kills a man who has the king's 
 
 peace, he forfeits to the king his body and all his 
 
 substance. 
 
 Oxfordshire"^. — If any one breaks the peace given by 
 the king's hand or seal, by slaying the man to 
 whom the peace is given, his life and members 
 are at the king's mercy. 
 
 Worcesierskire' . — In this county if any one knowingly 
 breaks the peace which the king gives with his 
 hand, he is deemed outlaw ; but the peace of the 
 king when given by the sheriff, if any one breaks 
 this, he pays 100 shillings. 
 
 Hereford^. — The king has in his demesne three forfei- 
 tures, breach of the peace, hamsocn (house-break- 
 ing), and forsteal (ambush); whoever commits 
 one of these crimes pays 100 shillings to the king, 
 whosesoever man he may be. 
 
 ' I. 56 b. It is much to be regretted that concerning a large and 
 important part of England (Sussex, Surrey, Hants, etc.), no informa- 
 tion is given us. 
 
 " I. 154 b. ■* I. 172. * I. 179. 
 
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234 The Criminal Liability of the Hundred 
 
 Chester^. — Peace given by the king's hand or writ, or 
 by his deputy (legatum), if this be broken, the 
 king has loo shillings, but if the king's peace be 
 at his command given by the earl, out of the 
 lOO shillings the earl has the third penny. If the 
 same peace be given by the king's reeve or the 
 bailiff of the earl, breach thereof is paid for 
 
 with 40 shillings If a free man in breach of 
 
 the king's peace kills another within a house, 
 his lands and goods go to the king, and he is 
 outlaw. 
 
 These customs have been cited in order that the 
 reader may contrast them with what he will meet 
 when he quits Mercia and enters the Daneslaw. 
 There seems at first sight some variance of local 
 practice as to whether or not a breach of the king's 
 peace given by his hand is or is not a crime for 
 which a money composition is accepted. Possibly the 
 passages may be reconciled by supposing that the 100 
 shillings fine is payable only when the breach of the 
 peace is not aggravated by homicide, but this is not to 
 our point, which is that nothing whatever is said about 
 any fine imposed on any save the criminal. But let us 
 enter the Daneslaw. 
 
 Nottinghamshire and Derbyshire^. — Peace given by 
 the king's hand or seal, if this be broken, it is 
 paid for by (per) 18 hundreds. Each hundred 
 £%. Of this the king has two parts, the earl the 
 third, i.e., 12 hundreds pay to the king, and 6 to 
 the earl. 
 
 ^ I. 262 b. See also Shropshire, i. 252. ^ i. 280 b. 
 
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The Criminal Liability of the Himdred 235 
 
 Yorkshire^. — Peace given by the king's hand or seal, 
 if this be broken, it is paid for to the king only 
 by (per) 1 2 hundreds. Each hundred £"&. Peace 
 given by the earl, if this be broken, it is paid for 
 to the earl himself by (per) 6 hundreds, each ;!^8. 
 
 Lincolnshire^. — Peace given by the king's hand or 
 seal, if this be broken it is paid for by 1 8 hundreds. 
 Each hundred pays ^8 ; 1 2 hundreds pay to the 
 king, and 6 to the earl. 
 
 Can there be any doubt about the meaning of these 
 passages ? " Unumquodque hundredum solvit viii. 
 libras." The writer must have meant that a fine was 
 laid upon certain districts, called hundreds, that each 
 hundred paid ;^8, that thus the heavy fine of ^144 or 
 £<^6 was collected, — a very different matter from the 
 fine of 100 shillings which elsewhere paid for a breach 
 of the king's hand-given peace. Was all this a blunder 
 of Norman scribes? If so it was a wild, stupendous, 
 blunder. 
 
 But this is by no means all the evidence concerning 
 these large fines levied in the Daneslaw and only in the 
 Daneslaw. Among the various sets of laws bearing 
 the names of the Confessor and the Conqueror there 
 is a brief code of which we have both a French and a 
 Latin version I The origin of both versions is very 
 obscure, and the French version in its completeness is 
 known to us only in the work of the forger who called 
 himself Ingulf. Consequently it is a document under 
 suspicion. It seems to be a work of private enterprise 
 patched together from the laws of Canute and perhaps 
 
 1 I. 298 b. ' I. 336 b. '' Will. Conq. I. 
 
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236 The Criminal Liability of the Hundred 
 
 from some old English documents which have not 
 come down to us. That the Latin version is a trans- 
 lation made from the French, seems to me, after a 
 minute examination of the two texts, indubitable, while 
 I believe it to be the opinion of philologists that the 
 French version, though undoubtedly it has suffered at 
 the hands of copyists, can in substance hardly be of 
 later date than the twelfth century \ Be that as it 
 may, we are there'' told that if in the Mercian law any 
 one breaks the king's peace, the fine is 100 shillings, 
 but in the Daneslaw the fine is .^144. We are not told 
 who pays this fine, we are only told its amount. That 
 amount is simply enormous if the fine be set on the 
 individual peace breaker, and wholly out of proportion 
 to the general criminal tariff set forth in this very docu- 
 ment. It would be easy to change pounds into shillings, 
 but how can we do this with Doomsday before our 
 eyes ? The agreement with the great survey is exact, 
 for ;^i44 is just what will be paid if 18 hundreds pay 
 ^8 apiece. 
 
 Turn we next to the code bearing the Confessor's 
 name, which professedly states the report of those 
 jurors from whom William demanded a summary of 
 the English laws I This is the work which Professor 
 Stubbs in the passage above cited describes as "a 
 
 ^ Littrd, in his Dictionary, on many occasions adduces it as 
 eleventh century work. As to the originality of the French version, 
 c. 45 seems to me conclusive, when it is compared with the code of 
 Canute from which it is taken — Canute, 11. 24. The Latin writer 
 thinks that voest comes from voir (videre) and makes nonsense of the 
 passage. It really means vouch and has more to do with vocareihaxi 
 videre. See too the absurd Latin rendering of c. 31. 
 
 ^ C. 12. ^ Leges Edwardi Confessoris. 
 
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The Criminal Liability of the Hundred 237 
 
 compilation of supposed Anglo-Saxon customs issued 
 in the twelfth century," and the issue of which there is 
 some reason for attributing to Glanvill. It is, at least 
 in its present form, a queer untrustworthy patchwork, 
 but good evidence of what the twelfth century thought 
 about the eleventh. Now this contains much to our 
 purpose. In the first place the writer enumerates the 
 various solemn peaces \ The peace of the king is 
 manifold. There is the peace given by his hand, the 
 peace of his coronation days, the peace of the great 
 church feasts, the peace of the king's highways. Then 
 as to the punishment of him who breaks the king's 
 peace. " Qui scienter fregerit earn, x. et viii. hundreda 
 in Danelaga, et corpus suum in misericordia regis." 
 This enigmatical sentence would not of itself give us 
 much information. But the writer after an interval 
 returns to this matter ^ again enumerates the great 
 peaces and says that they all have one and the same 
 sanction. "Verbi gratia, in Danelaga per xviii. hun- 
 dreda, qui numerus complet septies xx. libras et iiii. ; 
 forisfacturam enim hundredi Dani et Norwicenses (al. 
 Norguenses)' vocabant viii. libras." His meaning is 
 becoming clear. In the Daneslaw the fine of a hundred 
 is £'&, and this multiplied by 18, since in some way 18 
 hundreds are involved, gives £,i\^. He then explains 
 how out of each ;^8 the king has £^, the earl of 
 the county £2 los., the tithing-man (decanus) the 
 remainder. 
 
 ^ C. 12. ' C. 27 (25). 
 
 ^ Stubbs, Preface to Hovederis Chronicle (Rolls Series), vol. ii., 
 p. xlvii. The writer, who has theories of nationality, means men of 
 Norway, not men of Norwich. 
 
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238 The Criminal Liability of the Hundred 
 
 The mention of the tithing-man (decanus), who in 
 one version is raised to a deanery \ sets the writer off 
 on the subject of frank-pledge. But again he returns 
 to his hundreds^ Yorkshire', Lincolnshire, Notting- 
 hamshire, Leicestershire, Northamptonshire and to the 
 Watling Street, and eight miles beyond the Watling 
 Street, are, he says, " sub lege Anglorum," but doubt- 
 less he means "sub lege Danorum," and what others 
 call a hundred these counties call a wapentake^ Then 
 follows an etymological excursus, and then" " Erat 
 eciam lex Danorum, Northfolc, Suthfolc, Cantebruge- 
 scire, que habebat in emendationem forisfacturse ubi 
 supradicti comitatus habebant xviii. hundreda, isti x. 
 et dimidium. Et hoc affinitate Saxonum, quia tunc 
 temporis major emendacio forisfacturse Saxonum erat 
 quater xx. lib. et iiii." This seems to mean that while 
 in York, Lincoln, etc., 18 hundreds at ;^8 make up 
 ^144, in Norfolk, Suffolk, and Cambridge, io-| hun- 
 dreds make up ;^84. This difference between the two 
 parts of the Daneslaw is in some way due to the 
 neighbourhood of the three last named counties to the 
 
 ' Decanus episcopi : the whole document seems full of the interpola- 
 tions of would-be expositors. 
 
 ^ C. 30 (27). ' A better reading than Warwickshire. 
 
 * I think that every one who has said anything of this passage has 
 pointed out that " Anglorum " should be " Danorum," and this is 
 made still plainer by the MS. spoken of by Stubbs, Preface to 
 Hoveden {Joe. cit.), where the following clause runs "and what the 
 English {Angli for alii) call a hundred, these counties call a wapen- 
 take.'' In the Law Magazine and Review (No. ccxli. p. 348), I 
 have suggested that the eight miles beyond Watling Street was meant 
 to include the hundred " Dacorum " in Hertfordshire. 
 
 = C. 33 (30). 
 
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The Criminal Liability of the Hundred 239 
 
 "Saxones" among whom the gv^dii&r forisfactura is 
 ^84. 
 
 Before going further it will be well to notice that 
 the Leges Henrici Primi, another twelfth century 
 compilation, though they over and over again make 
 mention of breach of the king's special peace and its 
 punishment, have nothing whatever to say about those 
 enormously heavy fines. The crime is either one for 
 which no pecuniary composition will be accepted, or is 
 paid for by a fine of 100 shillings. This, taken along 
 with our other evidence, may dispose us to believe 
 that the practice of fining the district did not obtain 
 throughout England, and in this context it is worthy 
 of remark that the writer of the treatise which has 
 gotten the name Leges Henrici ascribed some kind of 
 super-eminence to the laws of Wessex\ It will have 
 been observed that all our evidence concerning these 
 large fines comes only from the Danized part of 
 England. The exception to this, if exception it be, is 
 the vague and obscure reference in the Leges Edwardi 
 to the " Saxones " who lived near Norfolk and Suffolk. 
 
 Now from what has been already said we seem 
 entitled to draw this inference, namely, that the makers 
 of the Doomsday survey believed that it then was, and 
 that the lawyers of the next century believed that it 
 then was, or at least had been, the law of some part of 
 England, that when the king's hand-given peace was 
 broken, a fine should be imposed upon a large district, 
 consisting of 18, 12, or perhaps 10^ hundreds, each 
 
 ^ He more than once says that Wessex is "caput regni et 
 regum " (70, § i j 87, § 5), a phrase which is applied to London in 
 one version of the Confessor's Laws, 
 
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240 The Criminal Liability of the Hundred 
 
 hundred paying ^8. What was the origin of this law ? 
 That it was enacted by the Conqueror at some time 
 between the conquest and the survey seems incredible. 
 That surely was not the time when a difference 
 between Mercia and the Daneslaw arose, when the 
 custom of Cambridge became other than the custom 
 of Nottingham. Two suppositions are open to us, 
 either that these rules were older than the Conquest, 
 or that they never existed save in the minds of Norman 
 lawyers who mistook a payment of hundreds of coins 
 for a payment by territorial districts called hundreds. 
 
 There is, so far as I know, but one passage in 
 any of the old English laws directly bearing on the sub- 
 ject. It is necessary therefore to consider "the laws 
 which King Ethelred and his Witan have decreed at 
 Wantage, as frith-bot'." It has generally been con- 
 sidered that despite the fact that the ordinance in 
 question was seemingly made at Wantage in Berk- 
 shire, it was nevertheless intended in some special 
 manner for the Danized part of England. In favour 
 of this conclusion are the mention of "the five burghs" 
 (which can hardly be other than the five Danish 
 towns, Derby, Nottingham, Leicester, Stamford, and 
 Lincoln), and the computation of all sums of money 
 Danish fashion in half-marks and ores, instead of 
 English fashion in shillings. Now taking Thorpe's 
 translation, what we are told is this : — The king's grith 
 (his special peace) is to stand as it formerly stood. 
 The grith which he gives with his own hand is to be 
 bot-less, that is to say, a breach thereof is a crime not 
 to be atoned for by any money payment. For the 
 ' Ethelred, in. 
 
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The Criminal Liability of the Hundred 241 
 
 grith which the ealdorman and the king's reeve give 
 in the assembly of the five burghs, hot may be made 
 ■with twelve hundred (bete man thset mid xii. hund.). 
 For the grith which is given in a burgh assembly, bot 
 may be made with six hundred. For that which is 
 given in a wapentake, bot may be made with a hun- 
 dred. For that which is given in an alehouse, bot may 
 be made, for a dead man with 6 half-marks, for a live 
 man with 12 ores. 
 
 Now doubtless the natural interpretation, and as I 
 suppose the only interpretation that the Anglo-Saxon 
 text will bear, is that the twelve hundred, six hundred, 
 and hundred here spoken of are coins. It is a little 
 strange that the quality of these coins should not be 
 mentioned, for such an omission is, to say. the least, 
 very rare in the Anglo-Saxon laws, but in this very 
 document there is a passage' in which a person is 
 directed to deposit "a hundred," the kind of the coins 
 not being stated, and I believe that reckoning by 
 hundreds without naming coins was a common Scan- 
 dinavian, though not an English practice. Still no 
 one can consider this Wantage ordinance side by side 
 with the customs reported in Doomsday and the Leges 
 Edwardi without believing that there is some connec- 
 tion between them. They are almost exactly in pari 
 materia. It is true that according to Ethelred's law 
 there seems to be no fine when the peace broken is 
 that given by the king's own hand, while it is just in 
 this case that according to the later authorities the 
 18 hundreds are fined. On the other hand, it is far 
 from impossible that between the date of the Wantage 
 
 > C. 7- 
 
 M. 16 
 
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242 The Criminal Liability of the Hundred 
 
 assembly and the Norman Conquest the severity of 
 the law had been mitigated, and this bot-less crime 
 had become one for which in some cases a composition 
 might be taken\ Besides, if we are right in our con- 
 struction of the customs in Doomsday Book and in the 
 twelfth century compilations, the heavy fines there 
 spoken of have nothing to do with the fate of the 
 criminal. They are not paid by him but by his neigh- 
 bours. It may be, therefore, that under Ethelred's law 
 (which expressly declares itself to be merely declara- 
 tory), as there was a hundred fine, a six hundred fine, 
 a twelve hundred fine, so also there was an eighteen 
 hundred fine. 
 
 While therefore admitting that the hundreds men- 
 tioned in the Wantage ordinance are hundreds of coins, 
 one is still tempted to believe that more is implied in 
 the law than is expressed. The fine for breaking the 
 peace given in a wapentake is a hundred, and what is 
 the wapentake but a hundred or the assembly of a 
 hundred ? May it not be that in naming the amount 
 of the fine, we also name the district upon which it is 
 imposed ? This ordinance relates, apparently, to the 
 king's own peace proclaimed in and comprising a local 
 assembly. When the ealdorman and king's reeve 
 have proclaimed the king's peace in the assembly of 
 the five burghs, an assembly representing a large 
 district, if that peace be broken the whole district is 
 fined. So with the wapentake, the assembly of a single 
 hundred, if the king's peace proclaimed therein be 
 
 ^ Under Ethelred and Canute a reaction seems to have set in 
 against the severe penal laws of their predecessors : Ethelred, v. 3 ; 
 VI. 10 : Canute, n. 3. 
 
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The Criminal Liability of the Hundred 243 
 
 broken, the whole hundred is fined ; so even with the 
 alehouse, probably the meeting places of township or 
 tithing, for which in later days the vestry was substi- 
 tuted. It may, indeed, be difficult to imagine on what 
 occasions the king's peace would be proclaimed in so 
 humble an assembly, still there may have been occa- 
 sions when the king's reeve had to transact business 
 with the township. 
 
 Some such explanation as this is made the more 
 probable when we attempt to determine what were the 
 coins of which the "hundred" or several "hundreds' 
 consisted. A breach of the peace proclaimed in the 
 alehouse, or assembly of the tithing, is paid for by 1 2 
 ores. If, however, a man has been slain, the fine is 
 doubled, and becomes 6 half- marks. Now if the fine 
 for a wapentake's peace be a hundred ores this will fall 
 in with the theory that the wapentake consists of ten 
 tithings, for it is by no means improbable that the 
 hundred here mentioned is the so-called "long hun- 
 dred " of 1 2o\ At any rate, there is no other coin so 
 probable as the ore. The wapentake's peace is thus 
 reckoned at " one hundred " ores, the peace of a burgh 
 assembly at " six hundred " ores, the peace of the 
 assembly of the five burghs at " twelve hundred " ores. 
 For peace given by the king's own hand no composi- 
 tion is provided ; but, as already said, the supposition 
 that for the breach of this also a fine is required from 
 the district is not excluded by the declaration that the 
 
 ^ " If, as is generally believed, the Anglo-Saxon hundred was the 
 long one of six-score, the tithing ought to have contained twelve, and 
 Fleta speaks of the frank-pledges as dozetns." — (Stubbs, Const. Hist, 
 § 41, note, p. 86.) 
 
 16 — 2 
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244 ^■^^ Criminal Liability of the Hundred 
 
 crime is (for the criminal) bot-less. Might we suppose 
 that this fine was i8 "hundreds," that is i8 x 120 ores, 
 we should neatly arrive at our sum of ^144, for though 
 the better opinion seems to be that the Danish ore 
 was usually deemed equal to but fifteen pence, yet 
 there is direct authority in Ethelred's laws for reckon- 
 ing it at sixteen pence \ This result is arrived at by a 
 perilous series of suppositions, nor is any stress laid 
 upon the exact correspondence of figures. It is, how- 
 ever, necessary to notice that the largest fine mentioned 
 in the Wantage ordinance is, if the hundreds be 
 hundreds of ores (and that they must be so seems clear 
 from the relation of the fine in the case of the wapen- 
 take to the fine in the case of the alehouse), a fine not 
 merely great but enormous. At the very least twelve 
 hundred ores are ^75 and they may be £<^(i. I believe 
 that no other law contained in the Anglo-Saxon collec- 
 tion or in the Norman compilations exacts a fine to 
 the king amounting to one-tenth part of this sum. 
 The heaviest of such fines or mulcts is I believe ;^5, 
 and the difference between £^ and ^75 is (the word 
 must be repeated) enormous. What has just been 
 said should be qualified by the statement that the 
 murder fine was 46 marks, but the murder fine was a 
 fine laid on a district not on an individual, and even 
 this did not amount to one-half of £']^. Now con- 
 sidering the comparatively small fines which were 
 exacted even in the very worst cases, the conclusion 
 seems inevitable that if the twelve hundred of Ethel- 
 red's law mean twelve hundred ores, the fine is imposed 
 not on the criminal but on the district, and that district 
 ' Schmid, Gesetze, Glossar. v. Geld-Rechnung. 
 
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The Criminal Liability of the Hundred 245 
 
 a large one. If they be not ores what are they? 
 Twelve ores (sometimes 24) are demanded when the 
 peace given in an alehouse is broken, and from this we 
 clearly have an ascending scale, one hundred, six 
 hundred, twelve hundred. 
 
 Probably therefore the Doomsday surveyors were 
 not in the wrong when they said that in the Danized 
 counties a breach of the king's peace was paid for by a 
 number of hundreds, each paying ;^8. Mistakes about 
 numbers they may have made, but there was some 
 substantial truth at the bottom of their statements. It 
 may seem very strange to us that so large a territory 
 as 12 or 18 hundreds should be fined for a crime, but 
 the Leges Henrici speak of the impleading of a whole 
 county, or of several hundreds \ There is, too, a 
 series of entries in the Pipe Roll of the 31st of 
 Henry P which seems to tell of a very large fine "pro 
 pace fracta" imposed on a part of Cambridgeshire. 
 The fine is paid in part by the great landowners, in 
 part by the sheriff on behalf of the men of this, that, 
 and the other township, and though we cannot say 
 with certainty that all these entries were occasioned by 
 one and the same crime, still they follow each other in 
 immediate succession. 
 
 The importance of the evidence to which attention 
 has been asked is not small, and I hope that it may 
 come into the hands of explorers more competent than 
 myself. Its importance is not small, because even if 
 this fine for breach of the king's peace stood quite by 
 itself it would be a very noticeable fact in the history 
 
 ^ Leg. Hen. Prim. 48, § 2 " Si totus comitatus, vel vii. hundreta 
 super aliquibus implacitentur." ~ ^ p. 45. 
 
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246 The Criminal Liability of the Hundred 
 
 of our criminal law. But it does not stand by itself, 
 for if once established, it might be brought into con- 
 nection with those two most remarkable institutions, 
 the frank-pledge and the murder fine. As regards 
 the former, it certainly throws no light on the much 
 debated relation of the territorial tithing to the personal 
 frank-pledge, or group of ten or a dozen sureties, but 
 it may suggest that the tithing which was fined if the 
 peace proclaimed in its alehouse was broken, may have 
 been a responsible unit in the police system for other 
 purposes also. As to the murder fine it may suggest 
 that neither of the two rival stories about its origin 
 contains the whole truth, neither the story now gene- 
 rally accepted that William introduced it as a protection 
 for his French followers, nor the story which Black- 
 stone took from Bracton and Bracton from the Leges 
 Edwardi that the English Witan introduced it at 
 Canute's request as a protection for his Danes. If in 
 the Daneslaw it was the practice to fine a hundred or 
 several hundreds for breach of the king's peace, it may 
 also have been the practice to fine the hundred within 
 whose bounds was found the body of a murdered 
 foreigner, a foreigner to whom the king was " a pro- 
 tector and a kinsman \" Lastly, it may suggest that 
 the twelfth century writers who spoke of England as 
 divided between three laws, Danish, Mercian, West- 
 Saxon, had more reason for insisting on this theory 
 than they get credit for with most of their readers, and 
 that there really were very great and very important 
 diversities of local custom of which they tell us nothing 
 expressly . 
 
 ^ Ethelred, vni. 33 ; Canute, 11. 40 ; Leg. Hen. Prim. 75, § 6, 7. 
 
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MR HERBERT SPENCER'S THEORY OF 
 SOCIETY\ 
 
 I. THE IDEAL STATE. 
 
 When in 1879 Mr Herbert Spencer published his 
 Data of Ethics in advance of the second and third 
 volumes of his Principles of Sociology, he gave as 
 reasons for thus departing from his philosophic pro- 
 gramme his fear lest he should not be able to reach in 
 its proper order the last part of the task which he had 
 marked out for himself, and his unwillingness to leave 
 altogether unfulfilled the purpose which ever since 1842, 
 when he wrote his letters on The Proper Sphere of 
 Government, had been his "ultimate purpose lying 
 behind all proximate purposes," that, namely, of "find- 
 ing for the principles of right and wrong in conduct at 
 large a scientific basis ^" All his many readers are 
 glad in thinking that hitherto this fear has proved 
 groundless, and now that Ceremonial Institutions and 
 Political Institutions have been investigated, we may 
 hope for the completion of that work on Morality of 
 which the Data of Ethics forms but the introductory 
 part. It may seem, therefore, that the present is not 
 a well-chosen moment in which to criticise Mr Spencer's 
 1 Mind, 1883. ' Data of Ethics, Preface. 
 
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248 Mr H. Spencer's Theory of Society. 
 
 ethical principles and method as apparent in his already- 
 published works, but it may possibly add to the interest 
 with which we shall read any book or books that he 
 may have in store for us if in the meantime we consider 
 what he has led us to expect. 
 
 Not the least interesting fact about Mr Spencer's 
 conception of Ethics is that its chief outlines have 
 remained unaltered for at least thirty years. While 
 he has been maturing an idea of evolution of which 
 but faint glimpses were granted to us in 185 1, two 
 cardinal doctrines have been undisturbed from first to 
 last, or rather after every expedition into the material, 
 moral or social world he has returned to his original 
 theme with new faith, new proofs and illustrations. 
 Scientific Ethics must still begin with a study of the 
 relations which will exist between men in that ideal 
 state of society to which we are tending. A law of 
 equal liberty is still the main law, perhaps the only 
 knowable law of those relations. Mr Spencer has 
 indeed cautioned us^ that Social Statics " must not be 
 taken as a literal expression of his present views," and 
 has given us certain more definite warnings concerning 
 the qualifications with which it should be read, warnings 
 to which it is hoped that due regard will be paid in 
 what here follows; still Mr Spencer "adheres to the 
 leading principles set forth " in his early work, has 
 found new arguments for them in his Data of Ethics, 
 and has applied and defended them in many another 
 book and essay. It would seem, therefore, to be our 
 own fault if we fail to understand the general nature of 
 
 ^ Social Statics, Preface to American edition of 1864, adopted in 
 Preface to stereotyped edition of 1868. 
 
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The Ideal State 249 
 
 that undertaking which Hes before him in the last part 
 of his task. 
 
 Out of the many passages in which Mr Spencer 
 has stated his general doctrine of ethical method, the 
 following may be chosen as one of the most concise : — 
 
 " One who has followed the general argument thus 
 far, will not deny that an ideal social being may be 
 conceived as so constituted that his spontaneous activi- 
 ties are congruous with the conditions imposed by the 
 social environment formed by other such beings. In 
 many places, and in various ways, I have argued that 
 conformably with the laws of evolution in general, and 
 conformably with the laws of organisation in particular, 
 there has been, and is, in progress an adaptation of 
 humanity to the social state, changing it in the direction 
 of such an ideal congruity. And the corollary before 
 drawn and here repeated, is that the ultimate man is 
 one in whom this process has gone so far as to produce 
 a correspondence between all the promptings of his 
 nature and all the requirements of his life as carried 
 on in society. If so, it is a necessary implication that 
 there exists an ideal code of conduct formulating the 
 behaviour of the completely adapted man in the com- 
 pletely evolved society. Such a code is that here 
 called Absolute Ethics as distinguished from Relative 
 Ethics — a code the injunctions of which are alone to 
 be considered as absolutely right in contrast with those 
 that are relatively right or least wrong ; and which, as 
 a system of ideal conduct, is to serve as a standard for 
 our guidance in solving, as well as we can, the problems 
 of real conduct\" 
 
 ' Data of Ethics, § 105. 
 
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250 Mr H. Spencer's Theory of Society 
 
 Absolute Ethics stands to Relative Ethics, or 
 Moral Therapeutics, in somewhat the same relation 
 as that in which Physiology stands to Pathology\ We 
 must have a science of social and moral health, before 
 we can have a science or an art which shall deal with 
 social and moral disease. And moral health implies 
 social health ; the perfect man cannot exist in an 
 imperfect society, nor the fully evolved man in a 
 partially evolved society. To make any progress in 
 ethical science we must conceive a " perfect," " normal," 
 "ideal," "fully evolved" society. In the comparison 
 thus instituted between Relative Ethics and Pathology, 
 one who has had no "preparation in Biology" may 
 fancy he detects some confusion between immaturity 
 and disease, but it will be better for him not to meddle 
 or make with these comparisons. I n the Social Statics 
 the doctrine seems clear enough that, in so far as an 
 existing society differs from society as it will ultimately 
 be constituted, it is diseased^ Whether Mr Spencer 
 would hold such language now may be doubted, but 
 the theory that Absolute Ethics is a Physiology to 
 which Relative Ethics is the corresponding Pathology 
 is restated and defended in the Data. 
 
 Now Mr Spencer differs from some other promoters 
 of ideal commonwealths in this, namely, in believing 
 that the natural and normal course of human progress 
 tends towards the realisation of his ideal. Not that he 
 thinks all movement progress, for he points out that 
 there has been in some instances positive retrogression. 
 There are backwaters in the stream of history, not to 
 speak of stagnant pools. There is social dissolution 
 
 ^ Social Statics, c. i, § 3 ; Data, § 105. ^ Ch. i, § 3. 
 
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The Ideal State 251 
 
 as well as social evolution. Still social evolution is in 
 some sense normal. There are always forces which 
 are making for it, though they may be thwarted and 
 neutralised. Indeed, it seems to be his present opinion 
 that the ideal state contemplated by Absolute Ethics 
 can never be quite attained, though we shall approach 
 indefinitely or perhaps infinitely near to it, always 
 provided that cosmic processes do not outrun the 
 evolution of humanity, " reduce the substance of the 
 earth to a gaseous state'" and end all things in the 
 complete equilibration of universal and, it may be, 
 eternal death ^ I know of no formal proof that the 
 ideal state contemplated by Absolute Ethics is neces- 
 sarily beyond our attainment, but in First Principles 
 this seems to be either assumed or implicitly proved 
 both as to the balance between mankind and its en- 
 vironment and as to the balance between society and 
 the individual. The former "can never indeed be 
 absolutely reached," and the process which adapts 
 individual to society and society to individual must go 
 on until the balance between the antagonistic forces 
 approaches " indefinitely near perfection ^" Perhaps 
 there is something in the doctrine of rhythm as con- 
 ceived by Mr Spencer which forbids our hoping for 
 more than this. At one time he took a more cheerful 
 view, for we were told in Social Statics that all im- 
 perfection must disappear, that "the ultimate develop- 
 ment of the ideal man is logically certain — as certain 
 as any conclusion in which we place the most implicit 
 faith ; for instance, that all men will die." This 
 Mr Spencer formally proved as follows : — " All im- 
 ^ First Principles,^ i8i. ^ ibid., § 182. ^ ibid., § 175. 
 
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252 Mr H. Spencer's Theory of Society 
 
 perfection is unfitness to the conditions of existence. 
 This unfitness must consist either in having a faculty 
 or faculties in excess ; or in having a faculty or faculties 
 deficient ; or in both. A faculty in excess is one which 
 the conditions of existence do not afford full exercise 
 to ; and a faculty that is deficient is one from which 
 the conditions of existence demand more than it can 
 perform. But it is an essential principle of life that 
 a faculty to which circumstances do not allow full 
 exercise diminishes ; and that a faculty on which cir- 
 cumstances make excessive demands increases. And 
 so long as this excess and this deficiency continue, 
 there must continue decrease on the one hand and 
 growth on the other. Finally, all excess and all 
 deficiency must disappear ; that is, all unfitness must 
 disappear ; that is, all imperfection must disappear'." 
 Where Mr Spencer now finds the error in this plausible 
 reasoning is not so plain as might be wished, — but 
 certainly he is not now convinced by it. 
 
 In the Data of Ethics we are told that "however 
 near to completeness the adaptation of human nature 
 to the conditions of existence at large, physical and 
 social, may become, it can never reach completeness^" 
 And here what seem to be very serious limitations are 
 set to the process of adaptation, so serious that the 
 passage may perhaps betray some momentary "lack 
 of faith in such further evolution of humanity as shall 
 harmonise its nature with its conditions"." We learn 
 that "in the private relations of men, opportunities 
 for self-sacrifice prompted by sympathy, must ever in 
 some degree, though eventually in a small degree, be 
 ' Social Status, c. 2, § 4. '^ Data, § 96. ^ ibid., § 67. 
 
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The Ideal State 253 
 
 afforded by accidents, diseases and misfortunes in 
 general. . . . Flood, fire and wreck must to the last yield 
 at intervals opportunities for heroic acts\" Now poor 
 unscientific Virgil painting his golden age got rid of 
 the possibility of wreck by " cmnis feret omnia tellus," 
 a suggestion which betrays a want of " preparation in 
 Biology." Mr Spencer, though he certainly does not 
 regard the enterprises of industrialism as "priscae 
 vestigia fraudis," should, one would imagine, be ready 
 to say that the fully evolved sailor, with body and 
 mind perfectly adapted to all the rhythms of season 
 and wind and wave, will think any talk of wreck no 
 better than a pedantic allusion to the classics. But so 
 long as we are subject to accidents, diseases and mis- 
 fortunes in general, we have hardly come even "in- 
 definitely near" the perfect state which allows no 
 "scope for further mental culture and moral progress." 
 Were we here speculating as to the future of the 
 human race it would become us to consider what are 
 Mr Spencer's reasons for setting to progress bounds 
 which it shall not pass, and also to ask whether, if 
 mankind is always to fall so very far short of adaptation 
 to its environment as to continue permanently subject 
 to flood, fire and wreck, accidents, diseases and mis- 
 fortunes in general, there must not to the very last be 
 at times a very wide divergence between the desires 
 and aims of the individual and those of his neighbours. 
 So long as we have not discovered all truth discover- 
 able by man, so long as there is scope for further 
 mental culture, there may well be danger lest some 
 new discovery or invention should throw the social 
 
 ' Data, § 96. 
 
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254 Mr H. Spencer's Theory of Society 
 
 machine out of gear and introduce discordant notes 
 into the pre-estabHshed harmony. 
 
 But here we are deahng with the ideal of Absolute 
 Ethics, the fully-adapted man, the fully-evolved society. 
 Nor have we plausible pretext for grumbling if 
 Mr Spencer will not allow us to be quite perfect. All 
 tends towards the best in this only possible evolution. 
 The life of man will be sociable, rich, nice, human, long, 
 and not only long b*ut broad. There will be the great- 
 est totality of life, quantum of life being estimated " by 
 multiplying its length into its breadth \" Industrialism 
 will have supplanted militancy, the religion of enmity 
 will be reconciled with the religion of amity, and 
 egoism will lie down with altruism. Without further 
 question, therefore, whether we are embarking under 
 a Christopher Columbus who will make for a real 
 concrete America hereafter to be peopled by an in- 
 genious and thriving race, or under a Raphael Hythlo- 
 daye who steers for Utopia, we will suppose this ideal 
 state made real and see what may be said of it. 
 
 In the first place, we must notice that in this state 
 there will not be any right or wrong in our sense of 
 the words ; certainly no wrong in any sense at all, and 
 with us right seems to imply possibility of wrong. 
 The four sanctions of morality will have become useless, 
 and their existence will perhaps be pronounced essen- 
 tially unthinkable. No religious sanction, for no fear 
 of the supernatural ; no legal sanction, for no command 
 of earthly superiors ; no social sanction, for society 
 will never be displeased ; no internal sanction, for no 
 war in our members, no lusting of the flesh against 
 
 1 Data, §§ 4, 8. 
 
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The Ideal State 255 
 
 the spirit, or the spirit against the flesh. If such words 
 as right, duty, ought survive at all, they will survive as 
 pretty archaisms of uncertain meaning. May not even 
 the same be said of liberty ; what meaning can it have 
 when no one is ever tempted to interfere with his 
 neighbour's desires ? Law goes too, at least law in 
 one of its meanings. When we say of these fully- 
 evolved men that they will obey the law of equal 
 liberty or any other law, we can only mean that they 
 will obey in the sense in which matter is sometimes 
 said to obey the law of gravity. In short, our ideal 
 code is a code "formulating," not regulating, "the 
 behaviour of the completely-adapted man in the com- 
 pletely-evolved society." 
 
 This, as I think, is Mr Spencer's view of the ideal 
 state. In the most interesting chapter of his Data, 
 he has sought to show that not only the external 
 sanctions of morality, theological, legal, social, but also 
 the internal or specifically moral sanction are the 
 accompaniments of imperfect evolution\ As we be- 
 come better and better adapted to our environment, 
 self-coercion, like every other form of coercion, tends 
 to disappear. We are brought to the " conclusion, 
 which will be to most very startling, that the sense of 
 duty or moral obligation is transitory, and will diminish 
 as fast as moralisation increases." " Evidently, then," 
 we are told, "with complete adaptation to the social 
 state, that element in the moral consciousness which is 
 expressed by the word obligation, will disappearl" 
 This is just what we should expect : the notion of 
 obligation or duty disappears. But here as well as 
 ^ Data, c. 7. ^ ibid., § 46. 
 
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256 Mr H. Spencer's Theory of Society 
 
 elsewhere Mr Spencer cannot be brought to say, per- 
 haps would deny, that the ideal will ever be quite 
 perfectly realised. "In their proper times and places 
 and proportions, the moral sentiments will guide men 
 just as spontaneously and adequately as now do the 
 sensations. And though, joined with their regulating 
 influence when this is called for, will exist latent ideas 
 of the evils which nonconformity would bring, these 
 will occupy the mind no more than do ideas of the 
 evils of starvation at the time when a healthy appetite 
 is being satisfied by a meaP."..."With complete evo- 
 lution, then, the sense of obligation, not ordinarily 
 present in consciousness, will be awakened only on 
 those extraordinary occasions that prompt breach of 
 the laws otherwise spontaneously conformed tol" 
 This, however, though for some reason or other it will 
 be the last stage of human progress, is clearly not the 
 ideal state, for further adaptation is conceivable. " Ideal 
 congruity" is not yet realised. The ideal man must 
 be adapted to " extraordinary occasions," as well as to 
 ordinary occasions. The perfect man will never be 
 prompted to break the law. The moral sentiments 
 will lose their " regulating influence " over competing 
 motives, and the " ideas of the evils which noncon- 
 formity would bring" having become latent must 
 finally vanish. Whether absolute perfection be prac- 
 tically possible or no, whether or no there will always 
 be some slight tremors and oscillations about the point 
 of equilibrium, it must be with the perfectly-adapted 
 man and the perfectly-adapted society that Absolute 
 Ethics must deal. Obviously to accept as ideal any- 
 ' Data, § 46. ''^ ibid., § 47. 
 
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The Ideal State 257 
 
 thing short of absolute perfection would be to vitiate 
 the whole procedure. "No conclusions can lay claim 
 to absolute truth, but such as depend upon truths that 
 are themselves absolute. Before there can be exactness 
 in an inference, there must be exactness in the ante- 
 cedent propositions. A geometrician requires that the 
 straight lines with which he deals shall be veritably 
 straight ; and that his circles and ellipses and para- 
 bolas shall agree with precise definitions — shall perfectly 
 and invariably answer to specified equations. If you 
 put to him a question in which these conditions are not 
 complied with, he tells you that it cannot be answered. 
 So likewise is it with the philosophical moralist. He 
 treats solely of the straight man. He determines the 
 properties of the straight man ; describes how the 
 straight man comports himself ; shows in what relation- 
 ship he stands to other straight men ; shows how a 
 community of straight men is constituted. Any de- 
 viation from strict rectitude he is obliged wholly to 
 ignore. It cannot be admitted into his premisses 
 without vitiating all his conclusions. A problem in 
 which a crooked man forms one of the elements is 
 insoluble by him\" The geometrician is not to be put 
 off with slightly crooked lines because they are the 
 straightest that can be made, nor can the morahst 
 accept as straight a man who is on "extraordinary 
 occasions " prompted to break the moral law. 
 
 This should be well understood, for Mr Spencer 
 not unfrequently sets before us a less remote ideal, 
 a state through which we shall pass on the way to an 
 ultimate goal, but not itself by any means the goal. 
 
 ^ Social Statics, c. i, § 3, cited and defended in Data, § 105. 
 
 M. 17 
 
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258 Mr H. Spencer's Theory of Society 
 
 There will be a time — we might call it the Silver Age — 
 when society will still coerce the individual but only 
 for a few purposes. There will still be laws in the 
 lawyer's sense of the word, the individual will still be 
 compelled to submit his will to the wills of others. 
 But the sphere of political coercion will be much 
 smaller than it at present is. To enforce the law of 
 equal liberty, to protect life, limb, reputation, and 
 property, to compel the performance of contracts, will 
 still be the function of the state. Within this narrow 
 sphere the coercive force will for a time be more active 
 than it is at present. When Mr Huxley labelled 
 Mr Spencer's political theory as "Administrative 
 Nihilism'" the latter replied that what he desired was 
 " Specialised Administration," and he has said that 
 the phrase laissez /aire does not fairly represent his 
 opinions^ The state should give over meddling with 
 many or most of those matters which are now thought 
 proper subjects for coercive regulation and should con- 
 centrate its efforts on the provision of justice swift, 
 cheap, foreknowable in accordance with the law of 
 equal liberty. Political coercion should be specialised. 
 Bentham himself has not spoken more strongly than 
 Mr Spencer of the ills which flow from our law's delay, 
 and Mr Spencer thinks that the remedy lies in con- 
 centrating upon the administration of justice those 
 coercive governmental forces which are now dissipated 
 in a thousand and one channels. But beyond this 
 provisional paradise there lies the veritable land of 
 promise. Perhaps the individual's "right to ignore 
 the state " of which we read in Social Statics' will never 
 ' Critiques and Addresses, I. " ^5^aj'j', Third Series, v. ' C. 19. 
 
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The Ideal State 259 
 
 be admitted as a right in our sense of the word, for 
 the existence of a right seems to imply some proba- 
 bility or at least possibility of infringement, but the day 
 will come when coercive co-operation will give way 
 to voluntary co-operation, and no society will attempt 
 to retain a member who wishes to be quit of it. 
 Whether any particular type of voluntary society will 
 be called a state, or a body politic, or the like, would 
 seem to be a question barely about the future history 
 of language, but membership of every social body will 
 be terminable at the will of the member, whose will, 
 however, cannot but be consonant with the will of each 
 of his fellows. 
 
 It is necessary to state this clearly, for in his Data 
 of Ethics Mr Spencer sometimes uses words which, if 
 I have caught his meaning, might mislead an unwary 
 reader. Thus a department of Ethics is marked off 
 which " considering exclusively the effects of conduct 
 on others, treats of the right regulation of it with a view 
 to such effects'." This division of Ethics comprises 
 the field of Justice. We then read as follows : — " This 
 division of Ethics, considered under its absolute form, 
 has to define the equitable relations among perfect 
 individuals who limit one another's spheres of action 
 by co-existing, and who achieve their ends by co- 
 operation. It has to do much more than this. Beyond 
 justice between man and man, justice between each 
 man and the aggregate of men has to be dealt with 
 by it. The relations between the individual and the 
 state, considered as representing all individuals, have 
 to be deduced — an important and a relatively-difficult 
 
 ^ Data, § 109, 
 
 17—3 
 
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26o Mr H. Spencer's Theory of Society 
 
 matter. What is the ethical warrant for governmental 
 authority ? To what ends may it be legitimately 
 exercised ? How far may it rightly be carried ? Up 
 to what point is the citizen bound to recognise the 
 collective decisions of other citizens, and beyond what 
 point may he properly refuse to obey them^ ? " 
 
 This passage certainly starts in the key of Absolute 
 Ethics; we are "among perfect individuals"; but 
 seemingly at the mention of the state it passes into 
 some Relative mode. If we are still dealing with 
 perfect individuals, and the questions which we are 
 asked are " relatively-difficult," the other questions of 
 Ethics must indeed be superlatively easy. What is 
 the ethical warrant for governmental authority ? None ; 
 for no perfect individual will coerce his equally perfect 
 neighbour. As to obedience and disobedience, the 
 only doubt is which of these two words is the more 
 inappropriate when we speak of the relations between 
 fully-evolved men. Of course, therefore, these questions 
 are questions of Relative Ethics ; one of the factors 
 they involve is the infliction of pain, and of this 
 Absolute Ethics has nothing to say. " The law of 
 absolute right can take no cognisance of pain, save the 
 cognisance implied by negation^" 
 
 Again, in the "prospects" which Mr Spencer takes 
 at the end of each section of his Sociology, he seems to 
 contemplate as the final condition of humanity a con- 
 dition which neither he nor others would call absolutely 
 perfect. Thus he raises the question — What is to be 
 the ultimate political rdgime^ ? " He thinks that it will 
 
 ' Data, § 109. ^ ibid., § loi. 
 
 ^ Political Institutions, § 5 7 7. 
 
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The Ideal State 261 
 
 not be the same in all communities, and then speculates 
 as to the future of the British Constitution, and ends by 
 saying that " neither these nor any other speculations 
 concerning ultimate political forms can, however, be 
 regarded as anything more than tentative." In the 
 immediately preceding sentence he says that " muni- 
 cipal and kindred governments may be expected to 
 exercise legislative and administrative powers subject 
 to no greater control by the central government than 
 is needful for the concord of the whole community." 
 The age of ultimate political forms during which mayors 
 and aldermen (in their ultimate form) exercise legis- 
 lative powers under the control of the central govern- 
 ment is not, I take it, the final epoch of equilibrium in 
 which there will be no " scope for further mental culture 
 and moral progress " ; it is at best a penultimate age. 
 So again, when " somewhat more definitely and with 
 somewhat greater positiveness," Mr Spencer infers the 
 political functions which will be carried on by those 
 ultimate political structures, and predicts that citizens 
 whose natures have through many generations of 
 voluntary co-operation and accompanying regard for 
 one another's claims, been moulded into the appropriate 
 form, will entirely agree to maintain such political 
 institutions as may continue needful, and then mentions 
 among such institutions " the agency for adjudicating 
 in complex cases where the equitable course is not 
 manifest, and for such legislative and administrative 
 purposes as may prove needful for effecting an equitable 
 division of all natural advantages' " — when Mr Spencer 
 speaks thus, he has not before him the ideal of Absolute 
 ^ Political Institutions, § 579. 
 
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262 Mr H. Spencer's Theory of Society 
 
 Ethics, but some preparatory millenium during which 
 adjudication and legislation will still be necessary. 
 Adjudication implies conflict. So legislation also 
 implies an imperfect adaptation of man to circum- 
 stances ; for even if it be said that all the citizens will 
 of their own free-will and without fear of punishment 
 obey every law when made, the dilemma must yet be 
 met : either the laws will bid them do only such things 
 as they would have done if no laws had been made, or 
 the laws will in some instances bid them do other 
 things ; in the former case the laws are futile ; in the 
 latter either the laws are pernicious, or the citizens are 
 not yet perfect. In the ultimate state there will be no 
 place for command, place only for counsel or advice, 
 for arguments which will convince the reason, not 
 coerce the will of the citizen ; and in this sense must 
 be understood the saying that, "however great the 
 degree of evolution reached by an industrial society, 
 it cannot abolish the distinction between the superior 
 and the inferior — the regulators and the regulated\" 
 The final form of regulation is advice. 
 
 No one will blame Mr Spencer for failing in his 
 Political Institutions to describe that ideal state which 
 is the subject-matter of Absolute Ethics. But even 
 when in the Data he is dealing expressly with Absolute 
 Ethics he sometimes writes as though he had not 
 firmly grasped this ideal state. As is well known, he 
 classifies the duties of one individual towards other 
 individuals thus : he first distinguishes Justice from 
 Beneficence, and then divides Beneficence into Positive 
 and Negative. This may be a sound classification in 
 ' Political Institutions, § 578. 
 
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The Ideal State 263 
 
 Moral Therapeutics, and conceivably, though in a some- 
 what non-natural sense, it may be applied to the con- 
 duct of the fully-evolved man in the fully-evolved 
 society. Duty in our sense of the word there will 
 be none, for every man will always do his duty. Still, 
 conceivably we may be able to classify the social 
 actions of fully-evolved men as just, positively bene- 
 ficent, negatively beneficent. But then on one of the 
 last pages of the Data of Ethics we are told that 
 "under ideal circumstances" Negative Beneficence 
 " has but a nominal existence." The reason given is 
 as follows : — " In the conduct of the ideal man among 
 ideal men, that self-regulation which has for its motive 
 to avoid giving pain practically disappears. No one 
 having feelings which prompt acts that disagreeably 
 affect others, there can exist no code of restraints 
 referring to this division of conduct'." Here Mr Spencer 
 seems to be gliding into the opinion that Absolute 
 Ethics is a code of restraints for ideal men in the ideal 
 society. Let us be fair, then, and treat Justice in the 
 same way as we treat Negative Beneficence. Under 
 ideal conditions Justice also must have " but a nominal 
 existence," whatever that may mean, for surely among 
 ideal men the regulation, whether imposed on the 
 individual by society or on a man by himself, which 
 has for its object to prevent unjust action " practically," 
 not to say theoretically, "disappears." No one is to 
 have feelings which prompt acts that disagreeably 
 affect others, and therefore surely there can exist no 
 code of restraints which will coerce the ideal man into 
 
 ' Political Institutions, § no. 
 
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264 Mr H. Spencer's Theory of Society 
 
 justice. We must not play fast and loose with the 
 conditions of our ideal state. 
 
 Mr Spencer, however, is not going to let Justice 
 escape with a nominal existence, for is there not the 
 law of equal liberty, and is not this law a law of Ab- 
 solute Ethics ? Very well, but that law is not an ideal 
 code of restraints which are enforced by any forum, 
 external or internal, against the ideal man, the prompt- 
 ings of whose nature are in perfect harmony with his 
 environment. It can only be a formula which states 
 in general terms what will be the conduct, or some 
 part of the conduct of ideal men towards each other. 
 What shape, then, does this formula take ? 
 
 Now I understand Mr Spencer to be still of opinion 
 that the maxim of Justice is as follows : — Every man 
 has the fullest liberty to exercise his faculties compatible 
 with the possession of like liberty by every other man\ 
 The maxim has a negative side :— No man may claim 
 to exercise any liberty which is incompatible with the 
 exercise of the like liberty by every other man. This 
 maxim is perfectly intelligible when applied, as it is in 
 Social Statics, to the actions of us imperfect men, 
 though to the mode in which Mr Spencer applies it 
 some objections might perhaps be taken. So applied 
 it is a test whereby we may judge of the rightfulness 
 of any law or other interference with the liberty of the 
 individual. Every individual is to enjoy equal freedom. 
 If I may be allowed the phrase, the objective freedom 
 of one is to be the same as that of any other. A law 
 does not sin against this supreme rule merely because 
 it is felt as more oppressive by one than by another. 
 ' Social Statics, c. 4, § 3 ; c. 6, § i. 
 
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The Ideal State 265 
 
 To respectable members of society a law against theft 
 is no curtailment of subjective freedom, but there are 
 disreputable members who do feel it to be a restraint 
 on their liberty. The law, however, in this case allows 
 to the vagabond the same sphere of objective freedom 
 that it allows to the man who would never dream of 
 taking his neighbour's goods. Such at least seems to 
 be Mr Spencer's view, for he thinks that the maxim of 
 equal liberty allows or even demands the existence of 
 proprietary rights. 
 
 But now this maxim is to be transfigured into a 
 formula expressing the conduct of ideal men. How 
 can this be done ? Mr Spencer is not of the number 
 of those who believe that in the Golden Age all men 
 will be equal, in the sense that they will all be able to 
 do and think and feel the same things. Quite the 
 contrary : society becomes ever more heterogeneous, 
 and in the ultimate form of society the limit of hetero- 
 geneity is reached. There will be more difference 
 between the powers bodily and mental of the ultimate 
 philosopher and the ultimate coal-heaver than there is 
 between the powers of their present half-evolved anti- 
 types. Men will neither do the same things nor be 
 able to do the same things ; the division of labour and 
 the accompanying specialisation of abilities will have 
 touched their utmost bounds. Not in this direction 
 may we look for equality. But may it not be that 
 though the activities of men will not be equal, yet they 
 will enjoy equal spheres of action ? Such language 
 is perfectly intelligible when used of such men and 
 such societies as at present exist ; for when we say 
 that a man is at liberty to do many things that he does 
 
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266 Mr H. Spencer's Theory of Society 
 
 not want to do, for instance, that every man is free to 
 construct a system of philosophy, or to speak his mind, 
 or to buy whatever is offered for sale, we have before 
 our minds the fact that there are many things which 
 a man may wish to do, and which but for legal or 
 social coercion he would do, but which he is restrained 
 from doing by restraint which he feels as restraint. 
 He is restrained because he is not in complete harmony 
 with the environing society ; there is not yet a " com- 
 plete equilibrium between man's desires and the 
 conduct necessitated by surrounding conditions." But 
 when it has become impossible for any man to have 
 any wish that society will not gladly see him fulfil, can 
 it in any sense whatever be said of him that he is free 
 to do anything save what he actually does ? Such an 
 assertion seems to me simply impossible. If ideal men 
 were to be equal in all their faculties and capacities, 
 then it would be possible to say that every one of them 
 would have an equal sphere of action, but as they are 
 to be unequal and yet are not to be prevented either 
 by social pressure or by moral self-coercion from doing 
 anything that they wish to do, their spheres of action, 
 if that phrase be at all appropriate, will be unequal. 
 There can be no " freedom of speech " where no one 
 is ever tempted to say anything that will give pain to 
 his neighbour. There can be no "freedom of con- 
 tract " where no one dreams of entering into any agree- 
 ments save those which the whole society will admit 
 to be advantageous to it and to every member of it. 
 The inference that I draw from this is that Mr Spencer's 
 ideal code, " formulating the behaviour of the com- 
 pletely-adapted man in the completely-evolved society," 
 
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The Ideal State 267 
 
 should have nothing to say about equal liberty, but 
 meanwhile we must be on our guard, and when we 
 ask for " a straight man " see that we get him. 
 
 Of course it may be true that, in a society such as 
 our own, to enforce the law of equal liberty is the best 
 means of hastening the advent of the happy time when 
 man will be fully evolved and " true self-love and social 
 be the same." Still, this is a matter which requires 
 to be proved, and cannot be proved by the meaningless 
 assertion that this law will be enforced in, or hold good 
 of, a society fully evolved. For instance, if we be 
 discussing freedom of speech, it is quite possible to 
 maintain that perfect adaptation may most readily be 
 produced rather by a rigorous suppression of all speech 
 which can possibly give pain than by granting a wide 
 liberty to those who have unfavourable opinions of 
 their neighbours. This assertion may be very untrue ; 
 still it cannot be met by saying that in the ideal state 
 there will be unbounded liberty of speech, any more 
 than it can be met by any other phrase that has no 
 meaning. 
 
 Whether Mr Spencer still adheres to the "first 
 principle " of Social Statics — the law of equal liberty — 
 as an accurate and sufficient formula of Justice, is 
 perhaps not quite certain, and since my own opinion 
 is that from that formula it is impossible without a 
 liberal use of quasi-legal fictions to deduce any code of 
 conduct whatever, I would gladly believe in its abandon- 
 ment. Still, it is quite plain that the Golden Age is 
 to be the reign of Justice. Saturn returns to us and 
 brings back the freedom of contract which our poli- 
 ticians have banished to his planet. Also, it is still 
 
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268 Mr H. Spencer's Theory of Society 
 
 plain to Mr Spencer that Justice is (in some sense or 
 other) Equality. For this identification he argues in 
 his last work as in his first. Therefore I may be 
 allowed to point out that the objection here taken to 
 the law of equal liberty as a description of the relations 
 which will exist between fully-evolved men applies 
 also to any theory which finds equality in those rela- 
 tions. Society will be more heterogeneous than it is 
 at present. There will be greater inequality between 
 the faculties and capacities of different men than there 
 is at present. Every faculty, every capacity will be 
 fully exercised and satisfied. Therefore men will not 
 have equal spheres of action ; for if every faculty be 
 fully exercised its sphere of action will be completely 
 filled by its action. 
 
 I can well understand, though not altogether agree 
 with, Mr Spencer when in Social Statics he writes 
 thus : — " This sphere of existence into which we are 
 thrown not affording room for the unrestrained activity 
 of all, and yet all possessing in virtue of their con- 
 stitutions similar claims to such unrestrained activity, 
 there is no course but to apportion out the unavoidable 
 restraint equally. Wherefore we arrive at the general 
 proposition, that every man may claim the fullest 
 liberty to exercise his faculties compatible with the 
 possession of the like liberty by every other man\" 
 This is a piece of Relative Ethics, of Moral Patho- 
 logy. The sphere of existence does not afford room 
 for the unrestrained activity of all, because we are not 
 yet fully adapted to our environment. But I cannot 
 understand Mr Spencer when in the Data he writes 
 
 ' Social Statics, c. 4, § 3. 
 
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The Ideal State 269 
 
 thus : — " This division of Ethics " [the division which 
 deals with Justice] " considered under its absolute form 
 has to define the equitable relations among perfect in- 
 dividuals who limit one another's spheres of action by 
 co-existing, and who achieve their ends by co-opera- 
 tion\" Of course the word equitable as here used 
 does not imply that the relations among perfect indi- 
 viduals could possibly be other than they ought to be, 
 that they could possibly be inequitable or iniquitous. 
 But Mr Spencer certainly does mean that in some 
 form or another equality ("equity or equalness'") is 
 to be found in them. But how ? Again, when it is 
 said that these perfect individuals " limit one another's 
 spheres of action by co-existing," these words must be 
 used in a queer sense. There will be no coercion, no 
 restraint, no pain' inflicted by one on another, no " fear 
 of the visible ruler, the invisible ruler, or of society at 
 large," finally no self-coercion, for " that element of the 
 moral consciousness which is expressed by the word 
 obligation " will have disappeared. In short, a man's 
 sphere of action will be limited only by his own spon- 
 taneous wishes and his physical constitution. There 
 can be no talk of " the sphere of existence into which 
 we are thrown not afibrding room for the unrestrained 
 activity of all "; for it is just the essence of the sphere 
 of existence into which we shall have grown that 
 it does give every one room to fulfil his every 
 desire. 
 
 Immediately before the passage just quoted, which 
 speaks of the department of Ethics concerned with 
 Justice as having to define the equitable relations 
 
 1 § 109. " Data, § 60. 
 
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270 Mr H. Spencei^s Theory of Society 
 
 among perfect individuals, we may read the following : — 
 " Though having to recognise differences among indi- 
 viduals due to age, sex or other cause, we cannot 
 regard the members of a society as absolutely equal, 
 and therefore cannot deal with problems growing out 
 of their relations with that precision which absolute 
 equality might make possible ; yet, considering them 
 as approximately equal in virtue of their common 
 human nature, and dealing with questions of equity on 
 this supposition, we may reach conclusions of a suf- 
 ficiently-definite kind\" I have quoted this passage 
 because I may have spoken too hastily in saying that 
 Mr Spencer is not of the number of those who believe 
 that in the Golden Age all men will be equal. If, 
 however, the words just cited describe the problems 
 with which Absolute Ethics must deal, then he does 
 seem to think for the moment that completely-adapted 
 men in the completely-evolved society will be so much 
 alike in their powers and wishes that Absolute Ethics 
 may ignore the differences between them and yet 
 obtain "conclusions of a sufficiently-definite kind." 
 Sufficiently definite doubtless, but also one would think 
 sufficiently untrue. Surely in this procedure our 
 strictly scientific Ethics would be substituting the 
 perfectly homogeneous for the superlatively hetero- 
 geneous, the least stable for the most stable, the 
 crooked for the straight. I do not think that this is 
 really Mr Spencer's meaning ; rather he is thinking 
 not of what men will do but of what they will not be 
 restrained from doing by legal or social pressure. But 
 I can only repeat that such pressure, these men being 
 
 ' Data, § 109. 
 
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The Ideal State 271 
 
 completely-adapted men in a completely-evolved society, 
 is out of the question. 
 
 Similar difificulties are occasioned by what is said 
 concerning Positive Beneficence \ We have already 
 seen that the ultimate state of man will still afford 
 opportunities for self-sacrifice though these opportunities 
 will be rare. Flood, fire and wreck, accidents, diseases 
 and misfortunes in general, are to be ours to the last, 
 and will give us now and then a chance for an heroic 
 act. This may be the ultimate state, but seemingly it 
 should not, cannot be the ideal state. The geometrician 
 would not put up with a straight line which on " extra- 
 ordinary occasions " fell into crookedness. Self-sacrifice 
 implies crookedness somewhere. Either he who offers 
 the sacrifice ought to feel it no sacrifice, or he for 
 whose sake it is made ought not to need the sacrifice. 
 It is, as I think, Mr Spencer's opinion that Absolute 
 Ethics has no place for self-abnegation. This could 
 hardly be otherwise. It will be so even in the relation 
 of parent to child. The ideal parent will not be called 
 on to give up any pleasure for the sake of the ideal 
 child. In doing for the child all that the child wishes 
 the parent will find pleasure. Whether the day will 
 ever come when the promptings of an inherited ex- 
 perience will teach the weaned child to leave your 
 cockatrice alone, may perchance be doubted, but failing 
 this adaptation of children to their environment, the 
 adaptation of parents to children will probably insure 
 as literal a fulfilment of prophecy as a judicious inter- 
 preter should desire. But though self-sacrifice can 
 have in Absolute Ethics no place at all, Mr Spencer 
 ^ Data, §§ 96, no. 
 
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272 Mr H. Spencer's Theory of Society 
 
 apparently thinks that there may be a place for Positive 
 Beneficence. He says : — " Of positive beneficence 
 under its absolute form nothing more specific can be 
 said than that it must become co-extensive with what- 
 ever sphere remains for it ; aiding to complete the life 
 of each as a recipient of services and to exalt the life 
 of each as a renderer of services. As with a developed 
 humanity the desire for it by every one will so increase, 
 and the sphere for exercise of it so decrease, as to 
 involve an altruistic competition, analogous to the 
 existing egoistic competition, it may be that Absolute 
 Ethics will eventually include what we before called 
 a higher equity, prescribing the mutual limitations of 
 altruistic activities\" This last sentence has its diffi- 
 culties, for an ideal code formulating the relations of 
 perfect men begins to grow more perfect before our 
 very eyes. It is perhaps to include eventually what it 
 does not include now. Once more we must ask, 
 whether perfect men will need, will be able to conceive, 
 a code prescribing what they are to do, and placing 
 them under an obligation to do it. And even this 
 scheme of the higher equity which Absolute Ethics 
 ■may eventually formulate is not apparently the ultimate 
 state ; it is not even the penultimate. For a time there 
 may be an all too brisk competition among wealthy 
 pleasure-hunters for the few remaining chances of an 
 exquisite altruistic gratification, and the higher equity 
 may be needed to prevent philanthropic jobbers from 
 engrossing the occasions of beneficence or forming 
 a " ring " to " corner " all those that are in misery and 
 distress. But as adaptation goes on, the acceptance of 
 
 ' Data, §110. 
 
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The Ideal State 2J2 
 
 a benefit will become very rare, and " altruistic com- 
 petition, first reaching a compromise under which 
 each restrains himself from taking an undue share of 
 altruistic satisfactions, eventually rises to a conciliation 
 under which each takes care that others shall have 
 their opportunities for altruistic satisfaction\" Even- 
 tually perhaps Absolute Ethics will formulate first the 
 compromise and then the conciliation, and yet it would 
 seem as if men would not be quite perfect, for this 
 " taking care " implies some self-restraint, some sense 
 of obligation. What then does Absolute Ethics say 
 now about Positive Beneficence ? The perfect man 
 will by the same course of conduct secure both his own 
 greatest happiness and the greatest happiness of all. 
 " The moral conduct will be the natural conduct^" or 
 rather morality will be a thing of the past. But we 
 have excluded Negative Beneficence from our ideal 
 code on the ground that "no one having any feelings 
 which prompt acts that disagreeably affect others, 
 there can exist no code of restraints referring to this 
 division of conduct." Is there then to be even eventu- 
 ally and in the ideal state a code of restraints referring 
 to the division of conduct called Positive Beneficence ? 
 If so, are men yet perfect in this ideal state ? Seem- 
 ingly beyond the higher equity there lies the com- 
 promise, and beyond the compromise the conciliation, 
 and beyond the conciliation of each man with competing 
 philanthropists must lie the conciliation of each man 
 with himself. " That element in the moral conscious- 
 ness which is expressed by the word obligation, will 
 
 ' Da(a, § 97. ' ibid., § 47- 
 
 M. i8 
 
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274 Mr H. Spencer's Theory of Society 
 
 disappear," and the natural conduct will be — well it will 
 be the natural conduct. 
 
 Possibly to a perception of this consequence we 
 must attribute Mr Spencer's apparent reluctance to 
 admit that the ideal of perfect adaptation can ever be 
 reached. We must not have our " straight man " all 
 too straight, or there will be no place for any theory of 
 Justice or Equality. The seer must keep his telescope 
 just a little dusty, in order that the outlook may not 
 be too blank for intelligible description. The sinless 
 innocence of the jelly-fish or the angel is not a good 
 material whereof to fashion the citizens of an instructive 
 model commonwealth, without some admixture of sin- 
 ful human nature, and " latent ideas " of nonconformity. 
 Whether this has weighed with Mr Spencer, or whether 
 there is something in the doctrine of rhythmic motion 
 that prevents our accepting really perfect social equi- 
 librium even as an ideal, it is not for me to guess, but 
 I think it clear that Mr Spencer should deal with 
 Positive Beneficence and with Justice or Equality as 
 he has already dealt with Negative Beneficence, and 
 say that under ideal circumstances they can have only 
 a nominal existence, which is, humanly speaking, no 
 existence at all. 
 
 II. THE LAW OF EQUAL LIBERTY. 
 
 In the last number of Mind I ventured to question 
 whether the law of equal liberty which Mr Spencer 
 now some thirty years ago set forth in his Social 
 Statics can in any guise or form find place in that 
 "ideal code of conduct formulating the behaviour of 
 
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The Law of Equal Liberty 275 
 
 the completely-adapted man in the completely-evolved 
 society'," to determine the contents of which is the task 
 of Absolute Ethics. It remains to consider this law as 
 a rule prescribing the behaviour of men who are not 
 yet perfect, for "when, formulating normal conduct in 
 an ideal society, we have reached a science of absolute 
 ethics, we have simultaneously, reached a science which, 
 when used to interpret the phenomena of real societies 
 in their transitional states, full of the miseries due to 
 non-adaptation (which we may call pathological states), 
 enables us to form approximately true conclusions 
 respecting the natures of the abnormalities, and the 
 causes which tend most in the direction of the normaP." 
 Now in Social Statics the law in question, the " First 
 Principle," was thus stated — " Every man has freedom 
 to do all that he •wills, provided he infringes not the 
 equal freedom of any other man^." Mr Spencer did 
 not regard this as a complete statement of the whole 
 duty of imperfect man. A man is bound to obey this 
 law and in obeying it he is just ; but he ought also to 
 be positively beneficent, negatively beneficent and 
 prudent. The field of positive beneficence grows ever 
 narrower ; still in some cases a man ought to sacrifice 
 himself in doing good to others. He ought again to 
 be negatively beneficent, for " various ways exist in 
 which the faculties may be exercised to the aggrieving 
 of other persons without the- law of equal freedom 
 being overstepped. A man may behave unamiably, 
 may use harsh language, or annoy by disgusting 
 habits ; and whoso thus offends the normal feelings 
 
 ' Data, § 105. " ibid. 
 
 ' Social Statics, c. 6, § i. 
 
 18—12 
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276 Mr H. Spencer's Theory of Society 
 
 of his fellows, manifestly diminishes happiness^" This 
 he ought not to do, for in the last resort happiness is 
 the chief good. Again there are the self-regarding 
 virtues ; one ought to be sober and so forth. But these 
 "supplementary restrictions," imposed by negative 
 beneficence and by prudence, "are of quite inferior 
 authority to the original law. Instead of being, like it, 
 capable of strictly scientific development, they (under 
 existing circumstances) can be unfolded only into 
 superior forms of expediency." 
 
 These "supplementary limitations involve the term happiness, and 
 as happiness is for the present capable only of a generic and not of a 
 specific definition, they do not admit of scientific development. 
 Though abstractedly correct limitations, and limitations which the 
 ideal man will strictly observe, they cannot be reduced to concrete 
 forms until the ideal man exists ^"..." Indeed we may almost say that 
 the first law is the sole law ; for we find that of the several conditions 
 to greatest happiness it is the only one at present capable of a 
 systematic development ; and we further find that conformity to 
 it ensures ultimate conformity to the others'." 
 
 Almost supreme in ethics, it is absolutely supreme 
 in politics. In other words, though the exercise I 
 make of the liberty which this law allows me is not 
 morally indifferent, still it cannot be right for any man, 
 prince, potentate or parliament to restrict my freedom 
 within any narrower bounds. Whether we be sove- 
 reigns, or whether we be subjects, we must leave every 
 man free to do all that he wills provided that he 
 infringes not the equal liberty of any other man. 
 
 Mr Spencer apparently still holds by this law. It 
 is true that in the Data of Ethics he nowhere states it 
 in such plain terms as those cited above. However he 
 ' Social Statics, c. 4, § 4. ' ibid., § 5. ' ibid., § 6. 
 
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The Law of Equal Liberty I'l'] 
 
 tells us that the maintenance of equitable relations 
 between men (and "equitable" means "equal") is 
 "the condition to the attainment of greatest happiness 
 in all societies ; however much the greatest happiness 
 attainable may differ in nature, or amount, or both," 
 and that " this pre-requisite to social equilibrium," " this 
 universal requirement," was what he had in view when 
 he chose for his first work the title Social Statics^. 
 He has also, at least as lately as 1868, told us that he 
 " adheres to the leading principles set forth " in that 
 book, though not " prepared to abide by all the detailed 
 applications of them," and further that "the deductions 
 included in Part II." (the Part which contains that 
 deduction of proprietary rights which forms the main 
 subject of this paper) " may be taken as representing in 
 great measure those which the author would still draw ; 
 but had he now to express them he would express some 
 of them differently^" We have reason therefore for 
 believing that Mr Spencer adheres to the " First 
 Principle" (which must be among the leading principles) 
 of Social Statics, and that he is still ready to deduce 
 from it proprietary rights in somewhat the same 
 fashion in which he set about that task in his 
 earliest work. Nor is this all, for in his very last 
 work, the Political Institutions, he recurs to the 
 distinction which he took in 1850 between property 
 in land and property in other things, with the result of 
 finding a new justification for one of the most marked 
 peculiarities of the treatment which property received 
 
 ' Data, § 61. 
 
 ^ Preface to American edition of 1864, and Preface to English 
 edition of 1868. 
 
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278 Mr H. Spencers Theory of Society 
 
 in Social Statics. It seems therefore fair to infer that 
 the doctrine here to be criticised is in the main 
 Mr Spencer's present doctrine ; but in any case the 
 fact that it once was his is a sufficient claim to respect- 
 ful attention, though, should the law of equal liberty 
 disappear from any Deuteronomy that may yet be 
 forthcoming, this would certainly remove a difficulty 
 from the way of some who would much rather agree 
 than disagree with Mr Spencer. 
 
 Now some of the applications which in Social 
 Statics were made of this first principle were, so far as 
 I am aware, quite new, and certainly they were very 
 striking. But the principle itself was not new, for it 
 had been stated and adopted by no less a person than 
 Kant. It seems to me probable, if such a guess may 
 be allowed, that in 1850 Mr Spencer was not aware of 
 this, for on the several occasions on which he has 
 argued that his law is a precise expression of that idea 
 of Justice or Equity which is more or less clearly 
 apprehended by others, he has cited authorities very 
 much less to the point than Kant's political or juristic 
 writings. The dogma of equal liberty is not at all an 
 unnatural outcome of a theory of Natural Law, or (as, 
 to prevent all ambiguity, we may say) of Natural 
 Right. From of old it stood written that all men are 
 by nature free, and that all men are by nature equal, 
 and when it had at length become plain that men 
 clamouring for natural liberty and natural equality were 
 not to be put off with stories about an original contract, 
 to say that all men ought to be equally free must have 
 seemed an obvious mode of reconciling the possibly 
 conflicting claims of these two ideals of Natural Right. 
 
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The Law of Equal Liberty 279 
 
 It may well be, therefore, that some exponent of 
 Jus NaturcB, some natural lawyer, had already hit on 
 Mr Spencer's first principle before it was stated by 
 Kant. At any rate, however, it was stated by Kant, 
 and that very plainly. Already in an essay published 
 in 1 793 we find this passage : — 
 
 " Ein Jeder darf seine Gliickseligkeit auf dem Wege suchen welcher 
 ihm selbst gut diinkt, wenn er nur der Freiheit Anderer, einem 
 ahnlichen Zwecke nachzustreben, die mit der Freiheit von Jedermann 
 nach einem moglichen allgemeinen Gesetze zusammen bestehen kann 
 (d. i. diesem Rechte des Andern), nicht Abbruch thut^." 
 
 Kant contrasts this principle of freedom with the 
 utilitarian doctrine that a ruler should directly aim at 
 making his subjects happy, and this latter, much in 
 Mr Spencer's manner, he pronounces despotic. Then 
 in the Rechtslehre this rule of equal liberty stands forth 
 as the general principle of all law (Recht). 
 
 " Das Recht ist also der Inbegriff der Bedingungen, unter denen 
 die Willkiihr des Einen mit der Willkiihr des Anderen nach einem 
 allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann.'' 
 
 "Eine jede Handlung ist recht, die oder nach deren Maxime die 
 Freiheit der Willkuhr eines Jeden mit Jedermanns Freiheit nach 
 einem allgemeinen Gesetze zusammen bestehen kann^"... 
 
 " Das angeborne Recht ist nur ein einziges. Freiheit (Unabhan- 
 gigkeit von eines Anderen nothigender Willkiihr) sofern sie mit jedes 
 Anderen Freiheit nach einem allgemeinen Gesetze zusammen bestehen 
 kann, ist dieses einzige, urspriingliche, jedem Menschen kraft seiner 
 Menschheit zustehende Recht^" 
 
 Had the Rechtslehre fallen into Mr Spencer's hands 
 ere he wrote Social Statics, he might have had the 
 satisfaction of appealing to a high philosophical authority 
 
 * " Ueber den Gemeinspruch : Das mag in Theorie richtig 
 sein," etc. (Kant's Werke, ed. Hartenstein, vol. vi., pp. 322-3). 
 = Ed. cit., vol. VII., p. 27. ^ ibid., p. 34. 
 
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28o Mr H. spencer's Theory of Society 
 
 in support of his first principle, but had he watched 
 Kant's struggles to get out of this formula a coherent 
 system of Natural Right, his satisfaction would 
 probably have been alloyed with some misgivings as 
 to the hopefulness of an undertaking which, cost his 
 great predecessor many a curious contortion. Cole- 
 ridge knew well this law of equal liberty. In The 
 Friend^ he says that all the different systems of political 
 justice, all the theories of the rightful origin of govern- 
 ment are reducible in the end to three classes, corre- 
 spondent to the three different points of view in which 
 the human being itself may be contemplated. That 
 being may be regarded as an animal, and we fall into 
 Hobbism ; or as endowed with understanding, and 
 utilitarianism follows ; or as rational, and we must 
 have politics of the pure reason, or " metapolitics." 
 Coleridge professing himself an advocate of the second 
 system (he was utilitarian in politics though not in 
 ethics), gives a sketch of the metapolitical system, 
 and in doing so expressly identifies it with the French 
 revolutionary philosophy ; but as it seems to me, the 
 theory which he states in order to refute is really an 
 eclectic mosaic of theories part English, part French, 
 part German. But whether or no this sketch fairly 
 represents the opinions which had been held by any 
 one theorist, Coleridge in the following passage not 
 indistinctly foreshadows the main doctrine of Social 
 Statics. 
 
 " Justice, austere, unrelenting justice is everywhere holden up as 
 the one thing needful; and the only duty of the citizen, in fulfilling 
 
 ' The Friend, First Section : — " On the Principles of Political 
 Knowledge" (ed. 1863, vol. i., pp. 179 ff.). 
 
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The Law of Equal Liberty 281 
 
 which he obeys all the laws, is not to encroach on another's sphere of 
 action. The greatest possible happiness of a people is not, according 
 to this system, the object of a governor; but to preserve the freedom 
 of all, by coercing within the requisite bounds the freedom of each. 
 Whatever a government does more than this, comes of evil : and its 
 best employment is the repeal of laws and regulations, not the 
 establishment of them. Each man is the best judge of his own 
 happiness, and to himself must it therefore be entrusted. Remove 
 all the interferences of positive statutes, all monopoly, all bounties, 
 all prohibitions, and all encouragements of importation and exporta- 
 tion, of particular growth and particular manufactures; let the revenues 
 of the state be taken at once from the produce of the soil ; and all 
 things will find their level, all irregularities will correct each other, 
 and an indestructible cycle of harmonious motions take place in the 
 moral equally as in the natural world. The business of the governor 
 is to watch incessantly, that the state shall remain composed of 
 individuals, acting as individuals, by which alone the freedom of all 
 can be secured'." 
 
 Now Coleridge, certainly not biased against the 
 claims of pure reason, rejected the law of equal liberty 
 because, as he thought, it must condemn property. 
 "It is impossible," he says, "to deduce the right of 
 property from pure reason^" To this he appends a 
 characteristic foot-note, " I mean practically and with 
 the inequalities inseparable from the actual existence of 
 property. Abstractedly, the right to property is dedu- 
 cible from the free agency of man. If to act freely be 
 a right, a sphere of action must be so too." We may 
 doubt whether a kind of property, the esse of which is 
 abstrahi, can be of much value to its owner, but 
 probably Coleridge has his eye on Kant and means , 
 that between proprietary rights and the law of equal 
 liberty there is no formal, though there is of necessity 
 
 1 First Section, Essay 4 (vol. i., pp. 219, 220). ^ ibid., p. 2S2. 
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282 Mr H. Spencers Theory of Society 
 
 a practical contradiction. Kant, as it seems to me, 
 had evaded rather than solved the problem by intro- 
 ducing alongside of his " Allgemeines Princip des 
 Rechts," a " Rechtliches Postulat der praktischen 
 Vernunft." Every external object of desire must, he 
 argues, be capable of appropriation. In order that it 
 may be used, it must be appropriated, and it would be 
 absurd to say that anything useful cannot rightfully 
 be used. The easy reply is that doubtless this is so, 
 that a political theory which condemns to eternal use- 
 lessness things that are useful condemns itself as worse 
 than useless ; but this does not prove that an admission 
 of this postulate of practical reason is not an infringe- 
 ment of the inborn right of every man to have equal 
 liberty with each of his neighbours. Kant, as I under- 
 stand him, thought it enough to say that there is no 
 formal contradiction between his postulate and his 
 principle. Certainly there is none, for neither formal 
 logic nor any principles which Kant could discover 
 a priori can prove that we are not living in a world 
 wherein it is possible for each of us to satisfy his every 
 wish and yet leave unappropriated as many objects of 
 desire as his fellows can possibly want. Such will 
 perhaps be our condition when we are fully-adapted 
 men in a fully-evolved society, but we happen to know 
 substantially, if not formally, that such is not our 
 present condition and that were it our condition the 
 idea of property, of exclusive right, would be absurd. 
 Who, asks Coleridge, ever thought of property in 
 heaven, property among angels and glorified spirits, 
 beings of pure reason ? And why, asks Hume\ raise 
 • ^ Inquiry concerning the Principles of Morals, sec. 3, pt. i'. 
 
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The Law of Equal Liberty 283 
 
 landmarks between my neighbour's field and mine 
 when my heart has made no division between our 
 interests, but shares all his joys and sorrows with the 
 same force and vivacity as if originally my own ? 
 Property means that the world being what it is and 
 men being what they are, every man cannot have all 
 that he wants. 
 
 The real problem which has to be faced by any 
 scheme of Natural Jurisprudence which rejects argu- 
 ments based on mere expediency, is just the old 
 problem which Locke set before him, though the 
 terms in which it has to be stated may be new. God 
 made all men free and equal and gave the earth to 
 them in common ; it is required to find a justification 
 for exclusive proprietary rights. It is required to find a 
 justification ; the conclusion to which the theorist must 
 come is a foregone conclusion, for, as Locke pointed out 
 jn memorable words, proprietary rights there must be if 
 the human race is to exist. Carry our socialism never 
 so far, we must end with appropriation, and appropria- 
 tion by individuals. When did the acorns become the 
 property of the natural man — " when he digested ? 
 or when he eat .'' or when he boiled ? or when he 
 brought them home ? or when he picked them up^ ? " 
 At latest they must be his when they are fairly in 
 his stomach. Mr Spencer knew well how to use this 
 argument against "M. Proudhon and his party,'' and of 
 course there is a plain absurdity in saying that no 
 appropriation can be just. It does not follow, however, 
 that the law of equal liberty is not committed to this 
 absurdity and merely refrains from declaring that 
 ' Of Civil Government, § 28. 
 
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284 Mr H. Spencer's Theory of Society 
 
 property is theft because the use of a word like 
 theft, which commonly imports some blame, might 
 seem to imply that property is at least possibly 
 rightful. 
 
 We may now consider how Mr Spencer, in 1850, 
 sought to avoid this ugly and impotent conclusion. 
 Most certainly he meant to avoid it ; every man would 
 so mean, but he more than others, for his practical 
 teaching in politics requires that proprietary rights 
 shall be built on a foundation so sure that they can 
 resist the attacks of any occasional exceptional ex- 
 pediency. He begins, as I venture to think, very 
 logically by making large, but not too large, conces- 
 sions to the anarchist. 
 
 " Given a race of beings having like claims to pursue the objects 
 of their desires — given a world adapted to the gratification of those 
 desires — a world into which such beings are similarly born, and it un- 
 avoidably follows that they have equal rights to the use of this world. 
 For if each of them has freedom to do all that he wills, provided he 
 infringes not the equal freedom of any other, then each of them is 
 free to use the earth for the satisfaction of his wants, provided he 
 allows all others the same liberty. And, conversely, it is manifest 
 that no one, or part of them, may use the earth in such a way as to 
 prevent the rest from similarly using it ; seeing that to do this is to 
 assume greater freedom than the rest and consequently to break the 
 law. Equity, therefore, does not permit property in land'." 
 
 This we must allow to be very sound argument, 
 very much more logical than anything in the Rechts- 
 lehre. ^y world, however, Mr Spencer must mean the 
 material universe, and when the world of the first 
 sentence becomes the earth of the second, and the 
 
 ' Social Statics, c. 9, § i. 
 
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The Law of Equal Liberty 285 
 
 land of the fourth, we think that he is but drawing 
 by way of example a particular conclusion from general 
 premises. So with property, this word in our ears 
 connotes some large and permanent right, for we are 
 not accustomed to say that the man in the street is 
 proprietor of the spot upon which he is standing. 
 What " Equity" really does not permit is the exclusive 
 possession by one man of any particle of matter which 
 any other men wish to possess, or the exclusive, though 
 but temporary, occupation of any part of space that 
 any other men wish to occupy. There follows a 
 reductio ad absurdum of any contrary opinion. " If 
 one portion of the earth's surface may justly become 
 the possession of an individual, and may be held by 
 him for his sole use and benefit, as a thing to which he 
 has an exclusive right, then other portions of the earth's 
 surface may be so held, and eventually the whole of the 
 earth's surface may be so held." This truth of course 
 holds good of other things besides the earth's surface. 
 If one atom may be owned, all atoms may be owned. 
 "Observe now the dilemma to which this leads. Sup- 
 posing the entire habitable globe to be so enclosed, it 
 follows that if the landowners have a valid right to its 
 surface, all who are not landowners, have no right at all 
 to its surface. Hence such can exist on the earth by 
 sufferance only. They are all trespassers^" Worse is 
 behind if theft be worse than trespass, for should we 
 concede property in one molecule inexorable logic may 
 eventually drive us to concede property in all molecules, 
 and our dilemma will then be theft or suicide. 
 
 It is true that Mr Spencer, for some reason or 
 ' Social Statics, c. 9, § 2. 
 
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286 Mr H. spencer's Theory of Society 
 
 another, spends most of his indignation on property in 
 land. This however does not prevent him from 
 dealing out, in a later passage, impartial though less 
 rhetorical condemnation against such property in mov- 
 ables as now exists. In the meantime he disposes 
 briefly of the existing titles of landowners. It can 
 never be pretended that they are legitimate. " Should 
 any one think so, let him look in the chronicles. 
 Violence, fraud, the prerogative of force, the claims 
 of superior cunning — these are the sources to which 
 those titles may be traced. The original deeds were 
 written with the sword, rather than with the pen : not 
 lawyers, but soldiers, were the conveyancers : blows 
 were the current coin given in payment ; and for seals, 
 blood was used in preference to wax. Could valid 
 claims be thus constituted ? Hardly." A title origin- 
 ally bad cannot be made good by transfer. Sale or 
 bequest cannot generate a right. Nor can lapse of 
 time validate the invalid. Clearly the law of equal 
 liberty cannot recognise any particular term of years 
 as sufficient to turn trespass into ownership. Then we 
 are told that " not only have present land-tenures an 
 indefensible origin, but it is impossible to discover any 
 mode in which land can become private property." 
 The pleas of title by first occupation, by improvement, 
 by, in Locke's phrase, "mixing one's labour" with the 
 land, are dispelled in a spirited dialogue between a 
 " cosmopolite " and a backwoodsman who has made 
 unto himself a clearing. " The world is God's bequest 
 to mankind," says the former, all men are joint heirs to 
 it ; you amongst the number. And because you have 
 taken up your residence on a certain part of it, and 
 
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The Law of Equal Liberty 287 
 
 have subdued, cultivated, beautified that part — im- 
 ' proved it as you say, you are not therefore warranted 
 in appropriating it as entirely private property\" 
 
 This is equally true of all things other than land. 
 We may subdue, cultivate, beautify, work up into this 
 form or that form, but matter we cannot make, and it 
 belongs to mankind. " The world is God's bequest to 
 mankind ; all men are joint heirs to it " ; and if no one 
 has a right to take a bit of it, cultivate it, and call it his 
 own, still less can he have a right to carry a bit bodily 
 away in his hands, his pocket, or his stomach and 
 thus consummate a constructive theft by actual aspor- 
 tation. For this conclusion we must wait until the 
 next chapter : but we get it in good time. 
 
 " The reasoning used in the last chapter to prove that no amount 
 of labour, bestowed by an individual upon a part of the earth's 
 surface, can nullify the title of society to that part, might be similarly 
 employed to show that no one can, by the mere act of appropriating 
 to himself any wild unclaimed animal or fruit, supersede the joint 
 claims of other men to it. It may be quite true that the labour a man 
 expends in catching or gathering, gives him a better right to the 
 thing caught or gathered, than any one other man ; but the question 
 at issue is, whether by labour so expended he has made his right to 
 the thing caught or gathered, greater than the rights of all other men 
 put together^." 
 
 Besides, his right can only be admitted if after the 
 appropriation there is, in Locke's words, " enough and 
 as good left in common for others." " A condition like 
 this gives birth to such a host of queries, doubts, and 
 limitations, as practically to neutralise the general 
 proposition entirely," and out of this inquisition " it 
 
 ^ Social Statics, c. 9, § 4- ^ ibid., c. 10, § i. 
 
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288 Mr H. spencers Theory of Society 
 
 seems impossible to liberate the alleged right without 
 such mutilations as to render it in an ethical point of* 
 view entirely valueless." 
 
 " Abstractedly," then, as Coleridge said, there may 
 be a right of property, but practically this is entirely 
 valueless. Property might be rightful in certain con- 
 ceivable or inconceivable circumstances (circumstances, 
 by the way, that would render the notion of property 
 absurd), but these circumstances are not ours. The 
 landowner and the owner of movables are in the same 
 position, and (though Mr Spencer does not emphasise 
 this conclusion) all existing titles to property of every 
 kind are bad. Indeed in almost all, if not all, cases 
 no title can be made to a movable that does not involve 
 an admission that there may be property in land. 
 Whence the title to an apple, a shilling, a coat ? 
 Exchange or gift has not generated it ; time has not 
 consecrated it. It is null. 
 
 The outlook now seems hopeless, and we are 
 beginning to think that Mr Spencer's " cosmopolite " 
 was really a chaopolite in disguise. But the law of 
 equal liberty having sufficiently proved its power as an 
 engine of impartial destruction, the time for reconstruc- 
 tion has come, and Mr Spencer has ready for us a 
 scheme which shall give to proprietary rights a legiti- 
 mate foundation ; in theory a very simple scheme, 
 whatever may be the practical difficulties which will 
 impede its accomplishment. He' did not recommend 
 what is called "the nationalisation of the land"; that 
 would have helped him but a little way, if any way, 
 towards establishing an equitable system of property. 
 Englishmen can have no better title to England than 
 
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The Law of Equal Liberty 289 
 
 has Lord A to his deer-forest. We must not exclude 
 Germans or Frenchmen, or the Chinese or the Chinooks 
 from sharing in the rents and profits of our fertile 
 island. The surface of the earth is to be owned by 
 "the public," "the great corporate body — Society," 
 "the community," "mankind at large," and is to be let 
 out upon leases at the best rent. This done, "all men 
 would be equally landlords ; all men would be alike 
 free to become tenants." Under this system of land- 
 tenure all difficulties about property in movables dis- 
 appear "and the right of property obtains a legitimate 
 foundation'." 
 
 Does it ? This is a serious question ; for, however 
 far distant may be the time when mankind at large 
 will " resume " the ownership of the soil, even a 
 theoretical deliverance from our apparently incurable 
 immorality would be of some value. Now suppose 
 that the resumption has taken place. All men are 
 equally landlords, but are all men equally free to 
 become tenants ? All men, it is true, are " equally 
 free to bid " for a farm, just as all men are even now 
 equally free to bid for whatever lands or goods are in 
 the market. If all that the law of equal liberty requires 
 in the matter of land-tenure is that every man shall be 
 equally free to bid for land that law is perfectly fulfilled 
 in this country at this moment. But existing titles, it 
 may be said, are bad, and men can not at present 
 purchase an "equitable" title. The answer is that 
 this truly unfortunate state of things will not be im- 
 proved by the resumption. Mr A will outbid his 
 fellows for a site in the best quarter, for the best farm, 
 ' Social Statics, c. lo, § 2. 
 
 M. 19 
 
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290 Mr H. Spencer's Theory of Society 
 
 the best moor. What will enable him to do so will 
 be his superior wealth, and his wealth will be then as 
 now illgotten. In whatever it may consist, coin or 
 cotton or what not, it will consist of matter subtracted 
 from the common stock of mankind. Sale or bequest 
 can not turn wrong into right, lapse of time will not 
 legalise what was once unlawful, and the long and short 
 of it is that A or his predecessors in title must have 
 robbed mankind and he is to be left in possession of 
 the stolen goods and even suffered to acquire by means 
 thereof a lease of public land. Our original sin of 
 wrongful appropriation is not thus to be purged away. 
 An equal division of all wealth, which Mr Spencer 
 would strenuously resist, seems at first sight a more 
 hopeful project. Once let there be an equitable distri- 
 bution of all desirable things, then, it might be thought, 
 we could leave the future to the law of equal liberty. 
 But to a similar proposal (restricted however to an 
 equal division of land) Mr Spencer has given a very 
 noteworthy answer. After urging the difficulty of 
 making a really fair allotment, he asks : — 
 
 " Is it proposed that each man, woman, and child, shall have a 
 section ? If so, what becomes of all who are to be born next year ? 
 And what will be the fate of those whose fathers sell their estates and 
 squander the proceeds. These portionless ones must constitute a 
 class already described as having no right to a resting-place on earth 
 — as living by the sufferance of their fellow-men— as being practically 
 serfs. And the existence of such a class is wholly at variance with 
 the law of equal freedom \" 
 
 The same, be it observed, will happen after as 
 before the "resumption" of the land. Portionless 
 
 ' Social Statics, c. 9, § 5. 
 
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Th& Law of Equal Liberty 291 
 
 ones will be born with no more chance of holding land 
 for years than they now have of owning land absolutely. 
 But it is more important to notice that here Mr Spencer 
 throws away the last hope of squaring property with 
 the law of equal liberty. Were it not for the claims of 
 children yet unborn we might harden our hearts and 
 say that this law is not retrospective. Let us sanction 
 existing titles, or let us make some fresh distribution 
 of wealth that seems better than the present, then pass 
 a sponge over the past and abide by our law for the 
 future. But "until it can be proved that God has 
 given one charter of privileges to one generation, and 
 another to the next," or to adopt other terms, until it 
 can be proved that men hereafter to be born are not 
 men within the meaning of our law, we shall find no 
 answer to Mr Spencer's question, what is to become of 
 all who are to be born next year.-" They will come 
 into an appropriated world, appropriated without their 
 consent. Redistribution of wealth on the birth of 
 every child is what our law requires. To find 
 Mr Spencer sanctioning the claims of those "whose 
 fathers sell their estates and squander the proceeds" 
 may surprise us. His usual doctrine is that the sons 
 of the industrially unfit shall not be heirs with the sons 
 of the fit. If the fathers eat sour grapes we must not 
 hinder the salutary process of evolution which sets the 
 children's teeth on edge. Very possibly this argument 
 about portionless ones may have escaped him un- 
 advisedly in the course of controversy with an imaginary 
 opponent, but it is a sound argument, one sanctioned 
 by the law of equal freedom. If we are to tell the 
 child of penniless parents that he is just as free as 
 
 19 — 2 
 
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292 Mr H. Spencer's Theory of Society 
 
 the rest of us to acquire property by contract or gift 
 we must make exactly the same remark to Mr Spencer 
 when he denounces "landlordism." 
 
 In short, if we are going to be really serious about 
 our law of equal liberty, and think it capable of a 
 "strictly scientific development," we must prepare 
 some scheme which will equalise the advantages of 
 all children hereafter to be born. Any such scheme 
 would be ridiculous enough and, what is more, would 
 be condemned by Mr Spencer as worse than ridiculous. 
 There remains but one other course ; we may adopt 
 the good old device of a constructive contract to which 
 most of Mr Spencer's predecessors in the attempt to 
 square property with natural liberty and equality have 
 found themselves sooner or later reduced. But much 
 experience has warned us that if once we take to 
 constructive contracts, we may indeed by the exercise 
 of a little metaphysico-legal legerdemain construct 
 whatever pleases us, but it is easiest and simplest to 
 reconstruct pure Hobbism and then our Law of Nature 
 becomes Quod principi placuit. 
 
 We have seen that according to Social Statics the 
 title which any one can now have to movable goods is 
 " in an ethical point of view entirely valueless." Per- 
 haps on this point Mr Spencer has changed his mind. 
 In Political Institutions he insists on the distinction 
 between property in land and property in other things. 
 The one is still " established by force," but the other is 
 now "established by contract." This is presented to 
 us not as guesswork or declamation, but as the sober 
 result of scientific sociology. That this theory is 
 groundless might, in my opinion, be shown even from 
 
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The Law of Equal Liberty 293 
 
 the evidence which Mr Spencer brings for its support, 
 but a discussion of history would here be quite out of 
 place. We are concerned with what has been only in 
 so far as it determines what ought to be, and all 
 Mr Spencer's historical generalisations shall therefore 
 be taken as true. We must ask then what inferences 
 he draws from the history of property as to the relations 
 which will exist between men in the ultimate stage of 
 human progress and therefore in that ideal society 
 which it is the business of Absolute Ethics to describe. 
 The answer shall be given in his own words. 
 
 " At first sight it seems fairly inferable that the absolute owner- 
 ship of land by private persons, must be the ultimate state which 
 industrialism brings about. But though industrialism has thus far 
 tended to individualise possession of land, while individualising all 
 other possession, it may be doubted whether the final stage is at 
 present reached. Ownership established by force does not stand on 
 the same footing as ownership established by contract ; and though 
 multiplied sales and purchases, treating the two ownerships in the 
 same way, have tacitly assimilated them, the assimilation may 
 eventually be denied. The analogy furnished by assumed rights of 
 possession over human beings, helps us to recognise this possibility.... 
 Similarly at a stage more advanced it may be that private ownership 
 of land will disappear. As that primitive freedom of the individual 
 which existed before war established coercive institutions and personal 
 slavery comes to be re-established as militancy declines ; so it seems 
 possible that the primitive ownership of land by the community, 
 which, with the development of coercive institutions lapsed in large 
 measure or wholly into private ownership, will be revived as in- 
 dustrialism further develops. The regime of contract, at present 
 so far extended that the right of property in movables is recognised 
 only as having arisen by exchange of services or products under 
 agreements, or by gift from those who had acquired it under such 
 agreements, may be further extended so far that the products of the 
 soil will be recognised as property only by virtue of agreements 
 between individuals as tenants and the community as landowner ^" 
 
 ' Political Institutions, § 540. 
 
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294 Mr H. Spencer's Theory of Society 
 
 The extreme caution of this prophecy will not 
 escape notice; "it may be doubted," "may eventually 
 be denied," "this possibility," "it maybe," " it seems 
 possible," these phrases expressive of hesitation and 
 doubt seem to me most appropriate. Certainly " it 
 may be doubted whether the final stage " of property- 
 law " is at present reached," and for my own part I do 
 not wish to deny that some day the state (possibly 
 mankind at large) may make itself the supreme land- 
 lord and let out the land on leases. But the final stage 
 is the ideal stage, and the success of Absolute Ethics 
 depends upon our knowing something, and something 
 precise about the final stage. It is really a matter of 
 some importance to know whether property in land is 
 demanded, or sanctioned, or tolerated, or condemned 
 by the law of equal liberty, and if from Absolute Ethics 
 we get no more than leave to doubt whether such 
 property is rightful, it is to be feared that after all we 
 must fall back on the "moral infidelity" of utilitarianism. 
 Mr Spencer compares the ownership of land to the 
 ownership of slaves, and the comparison is apt for our 
 purpose. As to the latter the law of equal liberty 
 speaks unequivocally ; for the right to personal freedom 
 is perhaps the only right, save the right to life, that 
 can be deduced therefrom. Even if we find some 
 difficulty in persuading our law to condemn slavery 
 founded upon contract, there is always open the way 
 of escape to which Kant resorted, that, namely, of 
 saying that the man who sells himself into slavery 
 makes himself a thing, and being a thing can not be 
 bound by his contract. But we must, if possible, 
 prevail on the law to yield us as definite a conclusion 
 about the ownership of land and goods. 
 
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The Law of Equal Liberty 295 
 
 We must perforce admit for the sake of argument 
 that property in land was " estabhshed by force " — the 
 first deeds shall be written not with the pen but with 
 the sword if Mr Spencer so pleases. Nor will we 
 dispute that property in movables is " established by 
 contract," but to this phrase we must give some 
 plausible meaning. It is true that in every civilised 
 community the title to chattels is very often a title 
 by contract, a title by sale. The rdgime of contract, 
 to quote Mr Spencer's words, is at present so far 
 extended that the right of property in movables is 
 recognised only as having arisen by exchange of 
 services or products under agreements, or by gift 
 from those who had acquired it under such agree- 
 ments. This is not quite true, for the only title a 
 proprietor has may have arisen from long-continued 
 peaceable possession, and the easy admission that such 
 a title is good is a characteristic mark which dis- 
 tinguishes late from early law. Still Mr Spencer's 
 proposition is in the main true, but then it is already 
 just equally true of property in land. Purchase, gift, 
 inheritance, undisputed possession, these are the titles 
 to land as well as to goods. As a matter of fact, for 
 the last three or four hundred years illegal force has 
 had just as little to do with the transfer of land in this 
 country as with the transfer of goods, and legal force 
 has had quite as much to do in protecting the owner 
 of chattels as in protecting the landowner. But of 
 course it is not of the title to existing chattels that 
 Mr Spencer speaks, for trace that title but two or 
 three stages back and it is seen to involve a title to 
 land and therefore to be established by force. It must 
 
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296 Mr H. Spencer's Theory of Society 
 
 be of property as an institution and of the beginnings 
 of that institution that he speaks, and it must be here 
 that he finds reason for the antithesis of force and 
 contract. Men have agreed that there shall be property 
 in movables, they have not agreed that there shall be 
 property in land. Now we must not seriously impute 
 to Mr Spencer the queer old notion that men did not 
 respect property in movables until, in due form of 
 Natural Law, they had agreed to respect it, but he 
 shall have the advantage of every hypothesis, however 
 extravagant, as to the past. Suppose even that all 
 men met together and made solemn compact that there 
 should be property in movables. Suppose also that 
 this display of ancestral wisdom demands our humblest 
 reverence.. All this is not to the point when we are 
 considering the question raised in Social Statics, 
 whether our present or any other distribution of 
 proprietary rights can be sanctioned by that impracti- 
 cable First Principle. How, we are driven to ask, are 
 you to make good your right to the money in your 
 purse, the wine in your cellar, the cotton in your ware- 
 house ? Some one owned a mine, a vineyard, a 
 plantation, and you (to put your case at its best) have 
 bought from him. But his property was established 
 by force, his land was part of the common inheritance. 
 "Would the original claimants be non-suited at the bar 
 of reason because the thing stolen from them had 
 changed hands? Certainly not\" Your right is "in 
 an ethical point of view entirely valueless," and no 
 historical theory can give it any value, unless, indeed, 
 we are to suppose that property in land as well as 
 ' Social Statics, c. 9, § 3. 
 
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The Law of Equal Liberty 297 
 
 property in movables is somehow or another "estab- 
 lished by contract." At least this can not be done by 
 any theory that will bear one moment's consideration. 
 This qualification I add because in his latest work 
 Mr Spencer contrasts private property in "things 
 produced by labour" with private property in " the 
 inhabited area which can not be produced by labour\" 
 Of course, however, after his refutation of Locke and 
 the backwoodsman he does not intend to base property 
 on labour. The author of First Principles has not yet 
 to learn that man does not make matter, the author of 
 Social Sialics has not yet to learn that mixing our 
 labour with matter does not make that matter ours. 
 If this reasoning be sound it is hardly worth while 
 to suggest any further difficulties. In these pages, at 
 least, it would be unnecessary to say that should we 
 deduce from our law of equal liberty the rightfulness of 
 something csXXedproperiy, little is thereby accomplished. 
 We want to know very much more than this before 
 we can admit the success of Mr Spencer's method. 
 We want, for instance, to know something about 
 the extent of testamentary power which this law 
 permits or prescribes, and there is still, outstanding, 
 that old question which Locke put to Sir Robert 
 Filmer — Who is heir by the law of nature ? One 
 remark must suffice to show the nature of these diffi- 
 culties. It does seem, as Mr Spencer himself thought, 
 quite out of the question, that his principle should 
 permit a man to gain a right simply by persistent 
 wrong-doing. But to admit that a right may thus 
 be gained, is, as already said, a marked characteristic 
 ' Political InstituHons, § 541- 
 
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298 Mr H. Spencer's Theory of Society 
 
 of civilised law, and the more civilised, the more 
 industrial we become, the easier we make it for men to 
 acquire property in this way. We do not even feign 
 that the rightful owner has acquiesced in the usurpation 
 or been negligent about the assertion of his rights. 
 At one moment a man is a trespasser ; the clock 
 strikes, and he is the rightful owner. How can the 
 law of equal liberty sanction or tolerate this, without 
 sanctioning, or, at least, tolerating whatever rules im- 
 posed by prince or parliament prove for the convenience 
 of mankind ? 
 
 So much has here been said of proprietary rights, 
 that little, if any, space remains for the consideration of 
 those other rights which Mr Spencer proposed to 
 deduce from his First Principle. His treatment of 
 property has particular claims upon our attention both 
 because it is, as yet, the most fully worked-out example 
 of the results that may be expected from Absolute 
 Ethics, and because the practical part of his political 
 teaching requires that he should place proprietary 
 rights beyond the reach of any assaults that may be 
 made by socialist or opportunist. But a very brief 
 glance may be cast at his deduction of some other 
 rights. 
 
 The first rights which he sought to obtain were 
 "the rights of life and of personal liberty'." These, as 
 I think, must be conceded to him. If A kills B it is 
 physically impossible that B should kill A, and if A 
 puts B under lock and key, theri so long as the restraint 
 lasts, B is not free to do the same by A. One naturally 
 expects that Mr Spencer will next deduce that right to 
 ^ Social Statics, c. 8. 
 
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The Law of Eq^tal Liberty 299 
 
 be free from bodily injury, from wounds and blows, 
 which is nearly related to the rights just mentioned. 
 It may be by an accident that he has omitted to do so, 
 or he may not have thought it worth doing, but none 
 the less the task has its difficulties. If A smites B, the 
 latter not unfrequently finds himself perfectly free to 
 repay the blow with interest. This is not always the 
 case, and very antique law does draw a marked dis- 
 tinction between an injury that does and an injury that 
 does not deprive the injured person of the power of 
 fighting ; but it would be a curious justification of semi- 
 barbarism were maiming, condemned by our First 
 Principle, the only principle at present capable of 
 scientific development, while mere "dry blows" were 
 subjected only to the empirical restrictions of negative 
 benevolence. A way of escape might seem to be open 
 to us in the doctrine that " every pain decreases 
 vitality^" that every pain involves some loss of power 
 and therefore some loss of liberty. But Mr Spencer 
 distinctly refuses to avail himself of this refuge, and 
 could hardly do so without falling into the unscientific 
 utilitarianism. " A man may behave unamiably, may 
 use harsh language, or annoy by disgusting habits ; 
 and whoso thus offends the normal feelings of his 
 fellows, manifestly diminishes happiness^" Neverthe- 
 less we are told that his conduct is not condemned by 
 the law of equal liberty ; he merely fails in negative 
 beneficence. What is true of the pain occasioned by 
 harsh language is seemingly true also of the pain 
 occasioned by a cuff or a kick; each, if Mr Spencer's 
 biology and psychology be correct, will decrease vitality, 
 
 ^ Data, § 36. ^ Social Status, c. 4, § 4. 
 
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300 Mr H. Spencer's Theory of Society 
 
 but the latter need no more than the former prevent 
 him who is hurt from having equal liberty withr him 
 who hurts. 
 
 Thus among the acts causing bodily pain for which 
 men now are punished or compelled to make reparation 
 we must distinguish those which do from those which 
 do not infringe the law of equal liberty ; for it is only 
 the former that the state may use its power to suppress, 
 and any attempt to suppress the latter by coercive 
 action would itself be a breach of the law. The result 
 will be not a little strange, but there seems no choice 
 except to hold either that he who beats his neighbour 
 is not to be punished or that he who speaks harshly to 
 his neighbour may rightfully be punished if pain will 
 be saved thereby. 
 
 A similar difficulty occurs when we pass to " the 
 right of property in characterV" Mr Spencer argues 
 that a good reputation may be regarded as property, 
 but in the end admits that possibly his reasoning may 
 be thought inconclusive. 
 
 " The position that character is property may be considered open 
 to dispute; and it must be confessed that the propriety of so classi- 
 fying it is not provable with logical precision. Should any urge that 
 this admission is fatal to the argument, they have the alternative of 
 regarding slander as a breach, not of that primary law which forbids 
 us to trench upon each other's spheres of activity, but of that 
 secondary one which forbids us to inflict pain on each other." 
 
 This, he says, illustrates a remark previously made, 
 namely, that the division of morality into separate 
 sections, though needful for our due comprehension of 
 it, is yet artificial. Now it may at once be allowed 
 
 ' Social Statics, c. 1 2. " Ibid. § 3. 
 
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The Law of Equal Liberty 301 
 
 that were this a question of mere classification, a ques- 
 tion whether the rule which forbids slander looks best 
 under the heading of Justice or the heading of Bene- 
 ficence, it would hardly be worth discussing, being a 
 matter of taste ; but the question whether slander be 
 forbidden by the First Principle is surely one of 
 substantial importance, for on our answer to it depends 
 whether or not the community may rightly strive to 
 prevent slander by punishing the slandefer and giving 
 the slandered a claim for reparation. To use coercion 
 when it is not needed for the maintenance of equal 
 liberty is to infringe the sovereign rule. 
 
 It may seem easy at first sight to get from this rule 
 that "right of property in ideas'," for which Mr Spencer 
 vigorously pleads, but really in this case there is just 
 the same difficulty to be met as that which faced us 
 when discussing property in material things. The 
 poet, the artist, the inventor, the discoverer, has but 
 like the confuted backwoodsman made unto himself 
 a clearing, improved some part of the common inheri- 
 tance and mixed his labour therewith. The cosmopolite 
 must explain to him also, that appropriation is only 
 lawful when " enough and as good is left in common 
 for others." A man who wrote a book and could 
 conscientiously say of it that nothing therein contained 
 was due to any one but himself, would assuredly need 
 no law of copyright to protect him in the enjoyment of 
 his perfect originality. Mr Spencer does not say this, 
 but he does grant that this proprietary right cannot be 
 admitted without limitation, for it is highly probable 
 that the causes leading to the evolution of a new idea 
 ' Social Statics, c. n. 
 
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3o2 Mr H. Spencer's Theory of Society 
 
 in one mind will eventually produce a like result in 
 some other mind. " Such being the fact, there arises 
 a qualification to the right of property in ideas which 
 it seems difficult and even impossible to specify defi- 
 nitely\" "Such a difficulty does not," we are told, 
 "in the least militate against the right itself," and yet 
 another important department of law seems here 
 handed over to the empiricist. 
 
 Of the rights of women, the rights of children and, 
 above all, that crowning right, the right to ignore the 
 state, it would hardly be fair to speak at present, since 
 here we have both warning in the preface to Social 
 Statics and some indications in other books that we 
 are not yet in full possession of Mr Spencer's mature 
 opinions. He perhaps would now say that the right 
 to ignore the state will never exist as a right, but that 
 the time will come when no society or community will 
 wish to retain a member who wishes to be quit of 
 it. Apparently he does not think that we have yet 
 reached the stage when the law of equal liberty should 
 without reserve be applied to women, and the liberties 
 of children are certainly not what they were in 1850. 
 " While an average increase of juvenile freedom is to 
 be anticipated, there is reason to think that here and 
 there it has already gone too far. I refer to the 
 United States^" In mitigating his claim for a free 
 nursery Mr Spencer has, as it seems to me, made a 
 large concession to common opinion, but at the same 
 time thrown fresh doubt upon his First Principle. 
 " For, if it be asserted that the law of equal freedom 
 applies only to adults ; that is, if it be asserted that 
 ^ Social Statics, c. 11, § 5. '^ Principles of Sociology, § 341. 
 
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The Law of Equal Liberty 303 
 
 men have rights, but that children have none, we 
 are immediately met by this question — When does 
 the child become a man ? at what period does the 
 human being pass out of the condition of having 
 no rights, into the condition of having rights ? 
 None will have the folly to quote the arbitrary 
 dictum of the statute-book as an answer^" The 
 temptation to quote the arbitrary dictum is not over- 
 powering, but some sort of answer is now required 
 of Mr Spencer himself, and it seems likely that the 
 word man in our supreme rule must be subjected to an 
 interpreting clause which will be no better than a 
 piece of most empirical utilitarianism. 
 
 It is still however possible to hope that Mr Spencer 
 will make over, or has already made over, the law 
 of equal liberty to its true owners, the metapoliticians, 
 the people who would solve ethical and political 
 problems by juristic methods. They know what to do 
 with it, and by implying a contract here and inventing 
 an estoppel there can turn out a result sometimes 
 ingenious and not always anarchical. But Mr Spencer 
 is much too great a philosopher to stoop to these little 
 tricks of the trade, and will find, or perhaps has already 
 found, that his practical teaching in politics has nothing 
 to gain from alliance with this unmanageable formula. 
 
 ' Social Statics, c. 17, § i. 
 
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THE EARLY HISTORY OF MALICE 
 AFORETHOUGHT\ 
 
 While yet Mr Justice Stephen's History of the 
 Criminal Law is fresh in the minds of many readers, 
 a few supplementary notes concerning the phrase 
 " malice aforethought," which has long formed part of 
 our definition of murder, may perhaps be acceptable. 
 To the very thorough historical account of that phrase, 
 of which we are now happily in possession, little can 
 be added that has any claim to be regarded as certainly 
 true, but something may be guessed which may serve 
 to make intelligible what is still a somewhat dark 
 passage in the history of our law. 
 
 In 1 53 1, wilful murder of malice prepensed became 
 an unclergyable felony^ and thenceforth there were 
 two kinds of homicide for which the punishment was 
 death, the one murder and an unclergyable felony, the 
 other manslaughter and clergyable. But the phrase 
 ■malice prepensed was by no means new in Henry the 
 Eighth's day. Seemingly it had been in use early in 
 the 14th century, to distinguish that homicide for 
 which a man should be hanged, from that excusable 
 homicide for which he should have a pardon of course 
 
 ' Law Magazine and Review, ka%\is\., 1883. 
 ^ 23 Hen. VIII., cap. i. 
 
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The Early History of Malice Aforethought 305 
 
 under the Statute of Gloucester^ Then, in 1389, it 
 received statutory sanction. An Act of Richard the 
 Second^ provided that a pardon for homicide should 
 be of no avail if the deed had been done of prepensed 
 malice, unless this aggravation of the crime was 
 specially mentioned in the pardon. 
 
 The word murder, on the other hand, was a very 
 old word, but had early gotten a very strange and 
 technical meaning. Of this it was robbed by the 
 Statute of 1340, which abolished the presentment 
 of Englishry'. It had been murder if one whose 
 English parentage could not be proved was found slain 
 and the hundred did not produce the slayer. Before 
 the Statute of Marlbridge^ it had in some parts of the 
 country been accounted a murder if a foreigner by any 
 accident came to a violent death, that is to say, even 
 in this case a murder fine had been levied. Mr Justice 
 Stephen'' shows very clearly that the Statute of Marl- 
 bridge does not countenance the doctrine put forward 
 in the Year Book of 1348^ and repeated with ex- 
 aggerations by Coke', namely, that before this statute 
 a man was hanged if he slew another in self-defence. 
 The statute merely abolished the practice of fining the 
 hundred when a foreigner perished accidentally. Prob- 
 ably this practice, of which there is good evidence ^ 
 was an abuse which had gradually grown up. It is not 
 
 ^ 6 Edw. I., cap. 9 ; Stephen, vol. in., pp. 36-41. 
 
 ^ 13 Ric. II., Stat. 2, cap. i. ^ 14 Edw. III., stat. i, cap. 4. 
 
 * 52 Hen. III., cap. 25. ^ Vol. iii., pp. 36, 41, 42. 
 
 « Y. B., 21 Edw. III., p. 17 b. ' 2nd Inst., 148. 
 
 ^ Bracton, f. 135. Abbrev. Placit., p. 19. A certain man named 
 Humfrey was drowned in the pond of Roger FitzEverard, at Herst ; 
 " Angleceria fuit presentata ad horam et terminum. Infortunium." 
 
 M. 
 
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3o6 The Early History of Malice Aforethought 
 
 countenanced by the earliest authorities which speak 
 of the murder fine, but to judge from the Pipe Rolls 
 murder fines at one time formed no inconsiderable 
 source of royal revenue, and since we know that one 
 very strange presumption, namely, that every slain 
 man is a foreigner, became firmly established, we need 
 not be surprised that in some districts the rule was 
 even stricter, and that a foreigner's violent death was 
 always reckoned a murder, and a sufificient occasion for 
 bringing money to the royal treasury. It may be 
 worthy of note that Hobbes^ long ago pointed out that 
 Coke had misunderstood the Statute of Marlbridge, 
 but Hobbes himself blundered into the very reverse of 
 the truth, and said that the murder fine was levied 
 only when the slain man was of English birth. 
 
 However, in 1340, the word murder lost this, its 
 technical, meaning. But the word itself was a very old 
 word, and we read of morth long before the time when 
 the murder fine makes its first appearance. It occurs 
 in several of the German Folk Laws or Leges Bar- 
 barorum and seemingly always points to some attempt 
 at concealment, more especially to the hiding away 
 of the dead man's body. In England, before the 
 Conquest, it apparently bore a slightly different shade 
 of meaning. It stood for manslaughter by poisoning, 
 witchcraft or other diabolic practice, and such morth 
 was punished as a true crime in days when mere 
 deliberate manslaughter was hardly a crime at all 
 in our sense of the word. But in GlanvilP that 
 
 ' "Dialogue of the Common Law." {Works, ed. Molesworth, 
 vol. VI., p. 83.) 
 
 " Lib. 14, cap. 3. 
 
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The Early History of Malice Aforethought 307 
 
 the deed is done in secret is the one mark which 
 distinguishes murdrum from homicidium simplex, for 
 Glanvill says nothing about the murder fine and 
 makes no distinction between Frenchman and EngHsh- 
 man. The only difference that he thinks fit to note in" 
 the treatment of the two crimes which he thus dis- 
 tinguishes, is what looks to us like a mere matter of 
 procedure, namely that in the case of murder, only the 
 nearest kinsman of the slain can bring an appeal, while 
 in the case of simple homicide the appeal may be 
 brought by anyone who is related to the slain by blood 
 or tenure, and who has been an eye-witness of the 
 deed. We should be rash in concluding that there was 
 no other difference, for Glanvill's treatment of the 
 subject is extremely meagre. His distinction is very 
 much that taken in the Assizes of Jerusalem^ and there 
 we find this difference between murder and mere 
 homicide the foundation of some very curious special 
 pleading. However, this is all that Glanvill has to 
 say. Bracton^ repeats Glanvill's distinction, but im- 
 mediately blurs and probably perverts it by mentioning 
 the murder fine. Murder, he says, is secret homicide, 
 for the slayer is unknown. By this he means that 
 were the slayer known and produced there would be 
 no murder fine, no murdrum. From this we may 
 conjecture that the word had already lost the sense 
 attributed to it by Glanvill, namely, that of man- 
 slaughter done in secret. When, therefore, in 1340, it 
 was set free from the very technical and peculiar sense 
 given to it by the practice of fining the hundred, it did 
 not apparently ever regain its oldest meaning, but came 
 ^ Capp. 84-92. ^ f. 134 b, 
 
 20 — 2 
 
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3o8 The Early History of Malice Aforethought 
 
 in course of time to signify a manslaughter by what 
 was called malice prepense. 
 
 As already said, Sir James Stephen has traced 
 the phrase malice prepense back to the first years of 
 'the 14th century. A story told by a contemporary 
 chronicler of good repute \ enables us to follow the 
 trail a little further. In the year 1270 a suit between 
 John of Warenne and Alan de la Zouche came 
 to a hearing in Westminster Hall. The litigation 
 degenerated into a brawl. Some of Warenne's re- 
 tainers drew their swords and wounded Alan. Warenne 
 fled away ; Alan was left in the Hall half dead. With 
 difficulty Warenne was brought to justice. He was 
 sentenced to pay both a heavy fine to the king and 
 heavy damages to the injured man ; but besides this, 
 he, with fifty knights, was to go on foot from the 
 Temple to Westminster, and there they were to swear 
 "quod non ex prsecogitata malitia factum fuerat quod 
 praedictum est, sed ex motu iracundiae nimis accensae." 
 The story is remarkable as giving an instance of 
 compurgation in a criminal case, for clearly these fifty 
 knights were compurgators. It is not a case of homi- 
 cide, for though Zouche died of his wounds, he 
 seemingly did not die until after Warenne had been 
 sentenced and had made his law. Perhaps we ought 
 not to draw from this story many inferences as to the 
 ordinary course of law, for Warenne was a very great 
 man and terms had to be made with him before he 
 would submit himself to justice. Still it seems plain 
 that already premeditated malice was a term of the law 
 
 ' Chron. T. Wykes, ann. 1270. (Rolls Series, Ann. Monast., 
 vol. IV., pp. 233-235.) 
 
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The Early History of Malice Aforethought 309 
 
 and was contrasted with sudden anger. Whether this 
 very term can be traced yet further I do not know, but 
 there is a very similar term which certainly has a 
 longer history. 
 
 Sir James Stephen has brought to light the im- 
 portant and neglected fact that the words malice 
 prepense occur in a statute of 1 389, the statute touching 
 pardons already mentioned. A pardon which in terms 
 is but a pardon for homicide is to be unavailing in case 
 the slain man has been murdered or slain "par agait, 
 assaut, ou malice purpense." Now these words, which 
 are used several times in the statute to describe the 
 worst kind of homicide, are most noticeable. Sir James 
 Stephen remarks that they are very like the definition 
 which the modern Penal Code of France gives of 
 "assassinat," and this observation opens up a field 
 for speculation into which we may venture a little 
 way. 
 
 First may be cited the articles of the French Penal 
 Code\ to which Sir James Stephen refers : — " L'homi- 
 cide commis volontairement est qualifid meurtre. Tout 
 meurtre commis avec premeditation, ou de guet-apens 
 
 est qualifie assassinat Le guet-apens consiste a 
 
 attendre plus ou moins de temps dans un ou divers 
 lieux un individu, soit pour lui donner la mort, soit 
 pourexercer sur lui des actes de violence ^" Certainly 
 this "avec premeditation ou de guet-apens" may well 
 remind us of the " agait, assaut ou malice purpense " of 
 
 ^ Arts. 295-6-8. 
 
 " Littr^ defines guet-apens thus : — " i. Embdche dressee pour 
 assassiner, pour d^valiser quelqu'un, pour lui faire quelque grand 
 outrage. 2. Fig. Tout dessein preinedite de nuire." 
 
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3 1 o The Early History of Malice Aforethought 
 
 our own statute. Now it may somewhat confidently 
 be said that the resemblance is not casual. Sir James 
 Stephen sees no reason why the word "guet-apens" 
 should have been introduced into the modern French 
 code, and it is easy to believe that "the word seems 
 to be regarded as surplusage by the Courts." But 
 whether or no there is any reason for its appearance, 
 the cause of its appearance is doubtless just the same 
 as that which preserves in our own law the phrase 
 " malice aforethought." It has a prescriptive right to 
 take part in the definition of the worst form of 
 homicide. 
 
 The appearance of " agait, assaut ou malice pur- 
 pense" in the statute of 1389, and of "guet-apens" in 
 modern French law may well set us asking whether 
 any similar phrase had been known in England as 
 a term of the law before the days of Richard the 
 Second. Now this very phrase "guet-apens" occurs 
 in a set of laws bearing the name of William the 
 Conqueror^ The date of the document in question is 
 very doubtful, but I think, for reasons it were long to 
 give, that we cannot ascribe it to a time later than the 
 1 2th century. In it we read as follows': "E ki 
 enfreint la pais le rei en Merchenelahe cent souz les 
 amendes. Autresi de hemfore et de agwait purpense. 
 Icel plait afert a la curune le rei." (And he who 
 breaks the king's peace, in the Mercian law, the fine 
 is a hundred shillings; so also of housebreaking, and 
 of premeditated ambush; this plea belongs to the 
 
 ' Will. Conq., i. (Thorpe, Ancient Laws; Schmid, Gesetze der 
 Angelsachsen). 
 2. 
 
 '^ Cap. 
 
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The Early History of Malice Aforethought 3 1 1 
 
 crown of the king.) The writer is making a para- 
 phrase of Canute's laws, among which is found a 
 well-known clause^ declaring what rights the king 
 has over all men, in other words, what are the pleas 
 of the crown. In Wessex and Mercia the king has 
 mund-brice (otherwise grith-brice, breach of his special 
 peace or protection), hamsocn (otherwise hamfare, or 
 housebreaking), foresteal, and two other pleas here of 
 no interest. There seems no doubt whatever that the 
 writer of the Leges Willelmi used the French phrase 
 agwait purpense, the modi&m guet-apens, as a translation 
 of the English yi>re5/^«/. Concerning this crime some- 
 thing may be learnt from the Leges Henrici^: "Si in 
 via regia fiat assultus super aliquem forestel est, et 
 c. sol. emendetur regi, si ibi calumpniam habeat, ut 
 divadietur vel retineatur ibi malefactor, vel si est in 
 
 socna regis Forestel est, si quis ex transverso incurrat, 
 
 vel in via exspectet et assalliat inimicum suum ; sed si 
 post eum exspectet, vel evocet, ut ille revertatur in eum, 
 non est forestel, si se defendat." The Latin of these 
 Leges Henrici is perhaps the oddest ever written, but 
 by light which falls from other quarters we may 
 probably explain this passage to mean, that the crime 
 called foresteal is committed, and the king becomes 
 entitled to a fine of a hundred shillings if A lies in 
 wait for B on the king's highway, assaults him, and is 
 taken in the very act, but it is not foresteal if A instead 
 of attacking B on the flank lets him pass and calls him 
 back, and then there is a fight in which B gets the 
 worst. For most of this we have other authority. 
 The Doomsday surveyors regarded foresteal as one of 
 ^ Canute, ii. 12. ^ 80, sees. 2, 4. 
 
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312 The Early History of Malice Aforethought 
 
 the ancient pleas of the crown, and mention the fine of 
 one hundred shilHngs. Foresteal, says one old glossary \ 
 is "force faite en real chimin." Another^ explains it 
 as "coactio vel obsistentia in regia strata facta." 
 When Lanfranc in his celebrated suit asserted the 
 privileges of the church of Canterbury, he proved' that 
 throughout the lands of that church the king had but 
 three rights (consuetudines). Of these three, one was 
 that if a man committed homicide or other crime upon 
 the king's highway and was caught in the very act, the 
 king had the fine ; if, however, he was not caught 
 there and then, in that case the king had nothing. 
 Foresteal, literally the anticipating of another, the 
 placing of oneself before another, is then an ambush, 
 a plotted assault upon the king's highway. Gradually 
 the word is appropriated by a crime of quite another 
 character, and at last forestalling comes to mean antici- 
 pating others in the market — speculating for a rise in 
 the price of corn. But its old sense is sufficiently plain 
 and well attested, and probably the writer of the Leges 
 Willelmi was quite right in translating it by agwait 
 purpense. The French words, whose modern forms 
 are guet, guetter, aguets, though themselves of Teutonic 
 origin and seemingly related to our word watch, are 
 the immediate progenitors of the English wait and 
 await", and guet-apens is prepensed awaiting. Here 
 then, we have premeditated assault upon the king's 
 
 ^ Hoveden (Rolls Series), vol. n., p. 242. 
 
 ^ Bromton (Decern Scriptores), p. 957 ; cf. Fleta, p. 63. 
 
 ' Textus Roffensis. (Anglia Sacra, pp. 334-336 ; Selden's 
 Eadnier, p. 199.) 
 
 ■* Littre, s.v. guet, aguets ; Skeat, s.v. wait, await ; Ducange, 
 s.v. wachta. 
 
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The Early History of Malice Aforethought 3 1 3 
 
 highway a plea of the crown, at a time when by no 
 means all assaults and by no means all homicides 
 are pleas of the crown. 
 
 But has this any bearing on our later law ? In 
 Bracton's day every homicide was a plea of the crown 
 and a felony — at least every homicide that was neither 
 justifiable nor excusable. When, however, we ask, as 
 we ought to ask, how this came to be so, all sorts of 
 difficulties meet us. The elaborate account of homicide 
 given us in the Leges Henrici, which, at least in their 
 present form, cannot be much older than the book we 
 ascribe to Glanvill, though very diffuse and disorderly, 
 is a tolerably consistent account, and it lets us know 
 for certain that the writer did not regard mere 
 intentional homicide as a felony, or as a plea of the 
 crown, or as a capital crime. It could be paid for 
 according to a fixed tariff. This tariff, however, owing 
 to the feudalizing process and consequent multiplication 
 of seignorial claims, was extremely intricate. In a 
 large and always increasing number of cases a man- 
 slaughter was an infringement of the king's special 
 rights, because of the circumstances, place, time and 
 the like, in which it was perpetrated, and very likely 
 the fines and compositions had become so numerous and 
 heavy that practically the slayer had often to pay with 
 life or member for want of gold. Probably the old 
 system would sooner or later have been found intoler- 
 able and have broken down of its own weight. But 
 the strange thing, the great peculiarity of our criminal 
 law, is that it was not supplanted by a myriad local 
 customs, but by one royal and common law. At a 
 very early date the king gathered into his hands 
 
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314 The Early History of Malice Aforethought 
 
 almost all criminal justice, so that crime and plea of 
 the crown became synonyms. The franchise of infang- 
 thief, dearly prized as it was, is but a poor reflection of 
 what existed elsewhere. We may well regard as a 
 curiosity the Halifax Gibbet Law, of which Sir James 
 Stephen gives an interesting account ; in Germany or 
 Northern France it would have been no curiosity at all. 
 Probably the chief device whereby the state of things 
 represented by the Leges Henrici was converted into 
 the state of things represented by Bracton, was legal 
 fiction. Not of course that such fictions can really 
 make any vast change in the conduct of human affairs ; 
 they can only be the machinery, not the working 
 power. The facts which made possible the fictions 
 are facts in the general history of England, but a word 
 may be said of the fictions themselves. 
 
 It is perfectly true that of any fictitious machinery 
 we see little on the surface of what Bracton writes 
 about homicide and other crimes. But Bracton had a 
 leaning towards Rome and Reason at a time when 
 Romanism and Rationalism were all one, and this 
 leaning, though it may have enabled him to lay down 
 law for unborn generations and undiscovered conti- 
 nents, makes him an untrustworthy guide to the legal 
 notions of his English contemporaries whenever he 
 ventures beyond a mere description of what, as a 
 matter of fact, was done in courts of law. 
 
 Without regard therefore to his theory of homicide, 
 a theory derived from the Canonists, let us look at the 
 words which were actually used in an appeal "de morte 
 hominis." The appellant says that B killed C "ne- 
 quiter et in felonia et in assaltu premeditato et contra 
 
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The Early History of Malice Aforethought 315 
 
 pacem domini regis ei datam'." Now all this may 
 seem to us mere verbiage and common form. I 
 imagine, however, that this brief formula contains no 
 less than three legal fictions, the object of which is to 
 show that the king's rights have been infringed. The 
 necessity for such fictions may seem to us as strange 
 as the fictions themselves. We cannot imagine a 
 manslayer admitting that he has taken life, but ques- 
 tioning why the king, of all people in the world, should 
 interfere; nor can we fancy a slain man's kinsfolk, or his 
 landlord, or the landlord of the slayer protesting against 
 any intervention of the king or his judges. But the 
 twelfth century books require us to imagine all this. 
 The king's criminal justice is hemmed in on all sides by 
 the rights of others, rights to fines and compositions 
 and forfeitures, and besides all this there is in the back- 
 ground the old notion that the quarrel is a very pretty 
 one as it stands, and that the king has no business to 
 meddle with it. The words just cited had probably 
 become merely formal, though they were formally 
 essential words in Bracton's day, and homicide was in 
 all cases a plea of the crown,'but none the less they 
 had once had a serious meaning. 
 
 We may indeed pass by nequiter as a vituperative 
 adverb, but the charge of felony {in felonid) contains, 
 as I believe, fiction the first. Of course it is impossible 
 in a casual sentence to say anything profitable about 
 the word felony, but one remark may be pardoned, 
 namely, that whatever may have been its original 
 meaning, whether deceit or cruelty, it came into 
 English law as a foreign word, and when it first 
 ^ Bracton, f. 138. 
 
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3 1 6 The Early History of Malice Aforethought 
 
 appears in England it seems to be no general name 
 for all grave crimes, but the name of a specific crime. 
 That crime is treason, or rather, since the word 
 treason also has changed its meaning, a breach of the 
 obligation which binds a man to his lord ; in short, 
 very much such a crime as was afterwards called 
 treason high and petty, when high treason still meant 
 not a crime against "the State," but a crime directly 
 touching our lord the king. I believe that nowhere 
 save in England did felony ever come to stand for 
 a vast class of crimes, or to include such a matter 
 as theft ; and it may be observed that in England 
 it soon lost all descriptive power. It came to stand 
 for a number of crimes which could be enumerated, 
 but no definition of felony ever was or could be formed. 
 To say that felony means treason may seem contrary 
 to the first principles of our law, but some of those first 
 principles were only settled late in the day, and looking 
 abroad, more especially to France, whence undoubtedly 
 the word felony came to us, there is good reason for 
 supposing that it once connoted a breach of the feudal 
 tie. Such a crime had long been in England, as else- 
 where, the worst of crimes ; it had been regarded as 
 the unpardonable sin, the sin of Judas who betrayed 
 his lord, and what is more to our purpose, it had been 
 a crime whereby a man's lands were forfeited to his 
 lord. The steps by which such crimes as mere man- 
 slaughter and theft became felonies it is now difficult 
 to retrace, but probably the king's court permitted 
 plaintiffs to "add words of felony," and did not permit 
 the accused to dispute the charge thus made. Our 
 foreign kings successfully asserted the principle that 
 
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The Early History of Malice A forethought 317 
 
 every man, whosesoever man he may be, is the king's 
 man, bound to the king by an immediate fealty ; and 
 perhaps to this principle the word felony owes the 
 enormously wide meaning which it gained in England. 
 Whatever may be the truth about this charge of 
 felony, the charge of breaking the king's peace is 
 almost certainly a fiction. It will be observed, that 
 according to the words of the appeal, B killed C not 
 merely " contra pacem domini regis," but " contra 
 pacem domini regis ei datam," that is to say, the slain 
 man had the king's safe conduct, or in some other way 
 was specially under the king's protection, land breach 
 of the king's protection was undoubtedly an ancient 
 plea of the crown. When in the Latin version of 
 Canute's code, and again in Doomsday, and in the 
 would-be laws of Edward, William, and Henry the 
 First, we read of a breach of the king's peace, we 
 ought certainly not to import notions from our later 
 law and to imagine that every common assault or even 
 every homicide could be supposed a violation of that 
 peace, or to think of breach of the king's peace as 
 almost or altogether synonymous with offence. A 
 charge of breaking the king's peace was a definite 
 charge of having done an act of violence to a person, 
 or at a place, or on a day specially privileged. Probably 
 this had lost all practical importance before Bracton's 
 time, and though of course it was absolutely essential 
 to charge in words a breach of the king's peace, this 
 peace was thought of not as a peculiar immunity 
 attached to places, persons, tintes and occasions, but 
 as the general peace and order of the realm. Still, to 
 make assurance doubly sure, it might be well to charge 
 
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3 1 8 The Early History of Malice Aforethought 
 
 that a slain man enjoyed a peculiar peace ei datum, 
 and thus make the crime a definite breach of the 
 king's griik or mund. 
 
 But the more important point is that the slayer was 
 guilty of premeditated assault (in assultu premeditato). 
 He is thus, r take it, charged with foresteal, agwait 
 purpense, guet-apens. Bracton afterwards gives the 
 words of an appeal "de pace et plagis," an appeal of 
 wounds, and in this the appellant charges that on a 
 certain day he was in the peace of our lord the king in 
 such a place, or that he was in the peace of our lord 
 the king, " in chimino domini regis\" This may show 
 a trace, though only a trace, of the old notion that the 
 king had a special interest in crimes committed upon 
 his highway, though by this time, just as the king's 
 peace was no longer a special privilege, so every high- 
 way had become, or was becoming, the king's highway. 
 But the main point to be noticed is that the appeals 
 " de morte hominis, de pace et plagis," and " de pace 
 et mahemio," all contain the charge of premeditated 
 assault. That this premeditatus assultus was probably 
 a Latin equivalent for the French guet-apens seems 
 very probable when we remember that the procedure 
 by appeal and wager of battle was French, not English, 
 and compare an extremely similar form of appeal for 
 wounds given in the Norman custumaP. "Je me 
 plaing de P., qui en la paix de Dieu et du Due me 
 assaillit felonneusement a ma charue, en aguet pour- 
 pettse, et me fist cest sang et ceste playe que je monstre 
 
 1 f. 144- 
 
 ^ L'Ancienne Coutume de Normandie (ed. W. L. de Gruchy), 
 cap. 74 (7S)- 
 
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The Early History of Malice Aforethought 319 
 
 a la justice." In the Latin version it runs: — "Ego 
 conqueror de T. qui ad carrucam meam, cum agueito 
 prcecogitato, in pace Domini et Ducis me crudeliter 
 assaltavit, et plagam, maleficium et sanguinem mihi 
 fecit, quod demonstravi judicio." 
 
 This charge of premeditatus assultus, which contains 
 the germ of malice prepense, appears in the appeal 
 " de morte hominis " as given by Fleta^ At a much 
 later date Staundford^ copies the old form of words 
 from Bracton, and I suppose that so long as men 
 waged battle in criminal cases the form remained 
 unaltered. Probably this phrase had a well-known 
 French equivalent. Certainly in the 13th century, 
 and I know not how much earlier, there was a distinc- 
 tion in French law, or at least in the law of some parts 
 of France, between murder and simple homicide, and 
 the distinguishing note of the former was guet-apens. 
 Beaumanoir, who towards the close of the century 
 committed to writing the custom of Beauvais, says 
 that there are four crimes for which a man shall be 
 drawn and hanged and forfeit his possessions. These 
 are murder, treason, homicide and rape. Murder and 
 homicide he thus distinguishes^: — "Murdres, si est 
 quant aucuns tue ou fet tuer autrui en agait apens^, 
 puis soleil couquant dusqu'a soleil levant, ou quant il 
 
 tue ou fet tuer en trives ou en asseurement Omicides, 
 
 si est quant aucun tue aucun en caude melUe, si comme 
 il avient que ten9ons naist et de la tenchon vient lede 
 parole et de le parole mell^e, por le quele aucuns 
 
 ' f. 48. ^ Ed. 1583, f. 78 b. 
 
 ^ Les Coutumes du Beauvoisis, cap. 30, sees. 3, 6 (ed. Beugnot, 
 vol. I., p. 412). 
 
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320 The Early History of Malice Aforethought 
 
 rechoit mort souventes fois." This is very strikingly- 
 like English law as it emerges three centuries later in 
 Staundford's Pleas of the Crown. Murder is marked 
 by guet-apens ; manslaughter is killing in what we have 
 chosen to call chance medley, but what doubtless should 
 have been called, and must once have been called, even 
 in England, chaude miUe. In an ordinance of St Lewis\ 
 and in other French records of the 13th century, the 
 same distinction appears, and guet-apens was so well- 
 established a term of the law, that Frenchmen writing 
 in Latin were at pains to make such words as agaitum, 
 aguaitum^. But the more classically-minded seem to 
 have preferred insidics prcepensatce, or insidics prce- 
 cogitatcB, and this introduction of the word insidicB is 
 of importance, because of a certain text in the Vulgate, 
 of which hereafter. 
 
 Nevertheless, the punishment for simple homicide 
 was, according to Beaumanoir, the same as the punish- 
 ment for murder. It may be noted by the way that 
 the French law in the 17th and i8th centuries was 
 quite as strict as the English in holding that every 
 one guilty of homicide is in theory liable to be put 
 to death. In case of excusable homicide, there was, 
 in France, the same necessity of obtaining from the 
 king " lettres de grace "■ — which, however, were granted 
 as of course — that there was in England of obtaining 
 a formal pardon ^ But whatever may have been the 
 
 ^ Ann. 1245. Ordonnances des Rois de France, vol. i., pp. 56-57. 
 
 ^ Ducange, s.v. agaitum, aguaitum, insidise, pensabiliter, pensa- 
 ra en turn. 
 
 * Jousse, Trait'e de la Justice Criminelle (ed. 1771), vol. in., 
 pp. 481—482 ; Denisart, Collection de Decisions, s.v. homicide, grace 
 
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The Early History of Malice Aforethought 32 1 
 
 origin of this state of things, which perdured until 
 the Revolution, criminal homicide not amounting to 
 "meurtre" was a capital crime just as meurtre was. 
 I believe that sometimes, and in some parts of France, 
 the murderer was broken upon the wheel, while the 
 mere manslayer escaped with a hanging, but in Beau- 
 manoir's time and district both were hanged. His 
 distinction therefore may at first sight seem futile. 
 Really it was of great importance, though it did not 
 affect the fate of the criminal. 
 
 In France criminal jurisdiction was to a very large 
 extent in other hands than the king's — in the hands of 
 great lords and chartered towns. Now murder was a 
 plea which belonged only to the highest jurisdiction. 
 In the records of the 13th century there are many 
 entries touching disputes as to whether some lord's 
 jurisdiction extends to murders. A good illustration 
 of the way in which the distinction between murder and 
 simple homicide made itself felt may be found in a case 
 which came before the king's court in i264\ A man 
 had killed his wife. The mayor and jurats of Noyon 
 hanged him. The bishop of Noyon was aggrieved by 
 this, for that, as he alleged, jurisdiction over murder 
 (justitia multri) was vested in him. The mayor, how- 
 ever, pleaded that there had been no murder, but just a 
 simple homicide en chaude m^lee (simplex occisio facta 
 ad calidam mesleiam). Even late in the i8th century 
 there was this distinction : homicide by guet-apens was, 
 while simple homicide was not, "un cas royal," that is 
 
 (ed. 1790); Bouteiller, Somme Rurale, ed. L. Charondas le Caron, 
 1611, p. 287. 
 
 ^ Les Olim, ou Registres des Arrets (ed. Beugnot), vol. I., p. 592. 
 
 M. 21 
 
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322 The Early History of Malice Aforethought 
 
 to say, a plea over which only the king's judges 
 had jurisdiction to the exclusion of the seignorial 
 courts \ 
 
 This, as it seems to me, may explain the appear- 
 ance of premeditatus assultus in the form of words, 
 whereby, according to Bracton, wager of battle is 
 made. This plea, as say the Leges Willelmi, belongs 
 to the king's crown. This, as say the laws of Canute, 
 is one of the rights which the king enjoys over all men. 
 It is " un cas royal," "placitum coronse." Perhaps the 
 averment of premeditated assault was in Bracton's day 
 merely formal. The king's judges must have been 
 unworthy of their successors if they were not prepared 
 to hold that an allegation giving the court jurisdiction 
 cannot be contradicted, and somehow or another the 
 great work of gathering into the king's hands all 
 criminal justice was successfully accomplished. If, 
 however, we are apt to forget that any such work had 
 to be done, we should try to realize the state of things 
 pictured by the Leges Henrici, and consider how easily 
 that might have developed into the state of things that 
 existed in contemporary France ; nor should we forget 
 that Glanvill and Bracton give us but one side of a 
 many-sided story, and that side the king's. 
 
 From prczmeditatus assultus it was no great leap to 
 prcBCogitata malitia, not nearly so great a leap as it is 
 now from assault to malice, according to the common 
 use of words. Undoubtedly, as Sir James Stephen 
 suggests ^ it is but gradually that malice has come 
 definitely to mean a motive, namely, spite, malignity, 
 
 ' Jousse, op. cit, vol. i., pp. 193-195. 
 ^ Vol, II., p. 118; vol. III., p. 56. 
 
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The Early History of Malice Aforethought 323 
 
 pleasure in another's pain. " Sufficit diei malitia sua'" : 
 — those familiar with such words as these can hardly 
 have thought that malitia must always mean a wicked 
 motive, nor did Wiclif scruple to translate them by "It 
 sufficith to the dai his owne malice." The transition 
 from premeditated assault to malice aforethought is 
 rendered even easier than it would otherwise have 
 been by the statute of 1389, which combines them in 
 the phrase " agait, assaut, ou malice purpense." This 
 probably is just such a generalizing crescendo as is at 
 all times dear to the draftsman ; "assault " is somewhat 
 wider than " ambush," and " premeditated evil " is a 
 still more general phrase. The transition, however, is 
 fortunately made yet easier for us by an almost con- 
 temporary French ordinance and an almost contem- 
 porary Scotch statute dealing with the very same 
 subject-matter as this statute of 1389, for it seems 
 that the royal prerogative of pardon was making itself 
 felt as a nuisance in France and Scotland as well as in 
 England. 
 
 In a French ordinance of 1 356^ this phrase occurs : — 
 " Nous ne ferons pardons ne remissions de murdres 
 ou de mutillacions de membres faiz et perpetres de 
 mauvaiz agait par mauvaise volunte et par deliber- 
 acion." 
 
 A Scotch statute of 1369', provides that no one 
 asking a pardon for homicide shall be heard until 
 inquisition has been made touching the crime, and if 
 it appears "quod factum fuerit per murthyr vel per 
 
 ' S. Matth., cap. vi., v. 34 (Vulg.). 
 
 * Ordonnances, vol. lu., p. 129. 
 
 ' Acts of Parliaments of Scotland, vol. i., p. 151. 
 
 31 — 2 
 
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324 The Early History of Malice Aforethought 
 
 praecogitatam malisiam," a pardon shall not be granted 
 without consent of Parliament. Here, plain enough, 
 is malice aforethought part of the Scotch definition of 
 the worst form of manslaying just twenty years before 
 the same phrase receives statutory sanction in England. 
 But the vernacular phrase in Scotland seems to have 
 been, not malice aforethought, but forethought felony. 
 In 1373, this occurs as a technical term in a statute\ 
 such as would now be called a temporary Coercion Act. 
 The king is to cause every manslayer to be seized and 
 imprisoned " et incontinenti cognosci facere per assisam 
 si homicidium fuit perpetratum ex certo et deliberato 
 proposito vel per forthouch felony sive murthir, vel ex 
 calore iracundise vz chaudemellee " ; in the former case 
 " incontinenti facienda est iusticia," while in the latter 
 the criminal is to be proceeded against in the ordinary 
 course of law. From this time onwards the contrast 
 between forthocht felony and chaude mellay recurs at 
 intervals in the Scotch statute book. The chief conse- 
 quence of the distinction became one not very unlike 
 that which existed in England after murderers had 
 been deprived of benefit of clergy. In Scotland, the 
 privilege of sanctuary or grith (the church grith of our 
 own old laws) seems to have been a more inviolable 
 impediment to penal justice than it was even in 
 England. At length, however, in 1469, just about 
 the same time that petty treason was made unclergy- 
 able in England, and before murder was made un- 
 clergyable, the murderer was excepted in Scotland from 
 the privilege of sanctuary'. Those in charge of the 
 
 ' Acts of Parliaments of Scotland, vol. i., p. 184, 
 " IHd., vol, 11., p. 96. 
 
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The Early History of Malice Aforethought 325 
 
 sanctuary are to be informed " that sic a man has 
 committit sic a cryme of forthocht felony tanquam 
 Incediator [insidiator] viarum et per Industriam for 
 the quhilk the law grantis nocht nor levis sic personis 
 to Joise [enjoy] the Immunite of the kirk." 
 
 Passing by for one moment this recurrence at a late 
 date of the old notion that waylaying, insidise, guet- 
 apens are the true marks of the worst kind of man- 
 slaughter, we may note the close similarity between 
 the phrases which in the latter half of the 14th century 
 were employed in France, Scotland, and England, 
 to designate the sort of crime which the king was not 
 to pardon. In France it is perpetrated "de mauvaiz 
 agait par mauvaise voluntd et par deliberacion " ; in 
 Scotland "per praecogitatam malitiam," "ex certo et 
 deliberato proposito vel per forthouch felony " ; in 
 England "par agait, assaut ou malice purpense." 
 Probably, almost the same idea is expressed in all 
 these phrases ; it is a sort of homicide that is dis- 
 tinguishable from manslaughter en chaude m^lee. 
 Some premeditation is of its essence, and the notion, 
 of waylaying or ambush is giving way to that of spite 
 or malevolence. 
 
 But our last quotation from the Scotch statute book 
 contains an allusion not to be missed. The Latin 
 words "tanquam insidiator viarum et per industriam," 
 which are introduced into a statute written in the 
 vulgar tongue, are of great historical value. They 
 refer to a passage in Exodus ^ Our Authorised 
 Version renders it thus : — " But if a man come pre- 
 sumptuously upon his neighbour, to slay him with 
 ' Exod., cap. xxi., v. 14. 
 
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326 The Early History of Malice AforetJiought 
 
 guile ; thou shalt take him from mine altar, that he 
 may die." In the Vulgate the words are, " Si qaisper 
 industriam occiderit proximum suum, et per insidias, 
 ab altari meo evelles eum, ut moriatur." 
 
 Such an one, therefore, the clergy could hardly 
 protect, for this was not merely a text of the Bible, 
 it was a text of the Canon Law\ I imagine that this 
 text had a most important influence on the criminal 
 law of mediaeval Europe. It draws a line between two 
 kinds of culpable homicide, and sanctions the belief 
 that insidise, waylaying, guet-apens, are the distinctive 
 marks of the worse kind. There are other passages 
 in the Pentateuch which in their Latin guise make 
 odium as well as insidicz characteristic of that man- 
 slaughter which is beyond the privilege of sanctuary. 
 It may be conjectured that these passages helped not 
 a little to establish the notion that the real test is 
 subjective, and to supplant premeditated waylaying by 
 malice aforethought^ 
 
 It is not impossible that the texts in the Vulgate 
 about insidics are the root of the whole matter, the 
 cause why the old notion that murder is slaying in 
 secret, or slaying with concealment, was after the 
 formation of the Canon Law replaced by the theory 
 that the differentia of the worst homicide is guet-apens, 
 premeditatus assultus. I imagine, however, that at 
 least a co-operative cause was the fact that waylaying, 
 " force faite en real chimin,'' was an infringement of 
 the king's own rights, " un cas royal," an ancient plea 
 
 ^ Decret. Gregor. IX., lib. v., tit. 12, c. i. 
 
 ^ Num., cap. xxxv., v. 20, seq. ; Deut., cap. xix., v. 4, seq. 
 
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The Early History of Malice Aforethought 327 
 
 of the crown, for that the highway was the king's, and 
 they that walked therein enjoyed his peace. 
 
 This may seem a superfluous attempt to explain 
 the sufficiently obvious. We are wont to think, or to 
 speak as if we thought that premeditated manslaying 
 is the worst type of manslaying, and are perhaps rather 
 surprised when Sir James Stephen points out that this 
 is no universal truth. But whatever may be natural 
 to us, we ought not to suppose that in the eyes of our 
 remote ancestors the fact of premeditation would 
 naturally have aggravated the guilt of manslaughter. 
 The curious agreement between French and English 
 law as to the necessity of obtaining a pardon in a case 
 of excusable homicide, must suggest that this usage, for 
 which Hale and Blackstone make half-hearted apologies, 
 and which may have owed its long continuance partly 
 to texts in the Old Testament, partly to the fees pay- 
 able by those who sought a pardon, had ifs origin not 
 in any accident, or in any desire to extort money, but 
 in the utter incompetence of ancient law to take note 
 of the mental elements of crime. Of this incompetence 
 there is plenty of other evidence. The rank of the 
 slayer, the rank of the slain, the rank of their respec- 
 tive lords, the sacredness of the day on which the deed 
 was done, the ownership of the place at which the 
 deed was done — ^these are the facts which our earliest 
 authorities weigh when they mete out punishment ; 
 they have little indeed to say of intention or motive. 
 When they do take any account of intention or motive, 
 then we may generally suspect that some ecclesiastical 
 influence has been at work, as when, for example, the 
 compiler of the Leges Henrici borrows from Gratian 
 
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328 The Early History of Malice Aforethought 
 
 and St Augustine that phrase about mens rea which 
 has found apermanent place in our law books. Secrecy, 
 or rather concealment, it may be allowed, was from of 
 old an aggravation of manslaughter, so was the taking 
 of an unfair advantage. Of this we see something in 
 the definition of foresteal already quoted ; it is foresteal 
 to lie in wait for one's enemy and to attack him on the 
 flank ; it is not foresteal to call him back and have 
 a fight with him. But in the days of the blood feud, 
 such days for example as are represented by the story 
 of Burnt Njal, mere deliberation or premeditation 
 cannot have been thought an aggravation of the crime ; 
 a man was entitled to kill his enemy provided that he 
 was prepared to pay the price or bear the feud, but he 
 was expected to kill his enemy in a fair, open, honest 
 manner, not to take a mean advantage, not to fall 
 upon him like a thief in the dark. In the fact therefore 
 that premeditation became an element in the definition 
 of murder, there is, as it seems to me, something that 
 requires explanation, and towards such an explanation 
 we have made some advance when we see that ambush 
 or waylaying is an offence against the King, and that 
 the book of Exodus excepts him who has slain another 
 per insidias from the privilege of sanctuary. 
 
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THE SEISIN OF CHATTELS^ 
 
 \ 
 There is hardly a rule of our legal terminology- 
 better settled than that which is broken by the title of 
 this paper. There is no such thing known to our law 
 as the seisin of chattels ; one may be seised of land, but 
 of a chattel, real or personal, one shall be possessed, 
 not seised. Of course, one may seize chattels, and 
 between seizure and seisin the etymologist may see 
 a close connection, but he that would commit a really 
 bad blunder let him speak of the seisin of chattels. 
 
 Seemingly, it has been the general opinion that this 
 distinction, now well marked, between possession and 
 seisin is of very ancient date, an outline of immemorial 
 common law, and could we accept one common descrip- 
 tion or definition of seisin this opinion would be forced 
 upon us as inevitable. " Seisin," said Lord Mansfield^ 
 and his words have passed into the text-books, " is a 
 technical term to denote the completion of that in- 
 vestiture by which the tenant was admitted into the 
 tenure, and without which no freehold could be con- 
 stituted or pass. Sciendum est feudum, sine investitura, 
 nullo modo constitui posse. Feud. lib. i, tit. 25 ; 
 lib. 2, tit. I ; 2 Craig, lib. 2, tit. 2." Here seisin 
 appears as a distinctly feudal notion, and the question 
 
 '■ Law Quarterly Review, July, 1885. 
 
 " Taylor dem. Atkyns v. Horde, i Burr. 107. 
 
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330 The Seisin of Chattels 
 
 why there is no seisin of chattels is answered at 
 once : — There is no tenure of movables, and the 
 termor has no fee or feud. But it will have occurred 
 to many readers as a little strange that Lord Mansfield, 
 instead of vouching some English writer, Glanvill or 
 Bracton, Littleton or Coke, to warrant what he thus 
 said about a word which, for many centuries, had been 
 constantly in the mouths of English lawyers, should 
 have appealed to certain ancient Lombards and a 
 modern Scotchman. The truth seems to be that there 
 was no old English authority available for the purpose. 
 Seisin is possession ; that is what Bracton says at the 
 outset, that is what Coke says at the close of the 
 mediaeval period ; one and the other would have been 
 surprised to hear that any act or consent on the lord's 
 part is necessary to constitute seisin. 
 
 Now, it can, as I believe, be shown that the notion 
 of seisin, so far from having any very close connection 
 with those ideas and institutions which we call feudal, 
 had not even any exclusive reference to land. From 
 time whereof there is no memory until the fifteenth 
 century was no longer very young, English lawyers 
 often, and in some contexts habitually, spoke about 
 and pleaded about the seisin of chattels. Attempt will 
 here be made to prove this assertion. The question 
 is not one barely about the use of words. The gulf 
 between what we call real property, and what we call 
 personal property, is so wide and deep and ancient 
 that we are constantly tempted to overrate its width, 
 depth, and antiquity, and thus, perhaps, we sometimes 
 miss important points in the history of the law. We 
 shall hardly understand all that may be understood of 
 
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The Seisin of Chattels 331 
 
 that history, if we steadily refuse to bring land and 
 goods into any relation with each other. Especially is 
 this true when we are dealing with possession or seisin. 
 Seisin and disseisin seem so mysterious a matter that, 
 in despair of rational explanation, we are glad to have 
 so satisfactory a word as feudalism wherewith to hush 
 the questioner. It may be possible, however, that 
 some of the mystery might be even more effectually 
 dispelled if we understood what our old law said about 
 the possession of goods, and from possibility we might 
 pass to probability, if we really found that it was once 
 a common thing to be seised of goods. 
 
 Having to argue for a conclusion which, perhaps, 
 runs counter to general belief, a considerable mass of 
 evidence must be pleaded. The argument should be 
 guarded against two objections. It must be made 
 clear that we are not confusing seisin with seizure, 
 seisin with being seised. It must be made clear that 
 we have not fallen into a trap set for us by some 
 pleader's blunder, some reporter's carelessness, or 
 some text-writer's whim, but are tracing an orthodox 
 and habitual use of words. While, however, the 
 reader's patience is begged for a number of citations 
 and references, he must be asked not to expect too 
 much. The mass of our printed information concerning 
 the treatment of chattels in the thirteenth and fourteenth 
 centuries is small indeed, when compared with the vast 
 bulk of materials for a history of real property, and for 
 the more part we shall be forced to rely on replevin 
 cases in which the possession of chattels is just 
 mentioned, but the whole argument turns on the 
 title to land or rent. 
 
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332 The Seisin of Chattels 
 
 We will take just one step beyond the limit of 
 legal memory in order to notice the Leges Henrici 
 Primi. There we find two phrases which we shall 
 meet elsewhere. The thief who is taken with the 
 mainour is de furto seisiatus (cap. 26). When a man 
 has been distrained he is to be allowed to replevy 
 his goods, et seisiatus placitet, that is, as I understand, 
 he need not plead until he is seised (cap. 29, § 2), 
 
 We pass from this instructive apocrypha to the 
 first book in the orthodox canon. Glanvill twice has 
 occasion to mention possession of goods ; each time he 
 calls it seisina. The pledgee of movables may have 
 seisin of them — cum itaque res mobiles ponuntur in 
 vadium ita quod creditori inde fiat seisina (lib. 10, 
 cap. 6). The plaintiff in an assize of novel disseisin 
 recovers seisin of the land and seisin of his chattels 
 also, seisinam omnium catallorum (lib. 13, cap. 9). 
 
 In Bracton there is very much to be read oi seisina 
 and possessio, and to me it seems that he uses the two 
 words as precisely equivalent, though, perhaps, for him 
 seisina is the vulgar word, possessio the technical and 
 correct Latin term to be found in the Roman law 
 books. We shall return to this hfereafter, when we 
 speak of chattels real. Bracton has hardly ever 
 occasion to mention the possession of movables, but 
 with him, as with the writer of the Leges Henrici, the 
 hand-having back-bearing thief is seisitus de latrocinio, 
 and is in seisina (fol. 150 b, 154 b). Fleta (fol. 54, 62) 
 copies, Britton (vol. i., p. 56) translates these phrases. 
 There can be no prosecution in the court of a lord 
 having franchise of infangthief, unless the accused 
 de rebus insecutis fuerint seisiti; in other words it 
 
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The Seisin of Chattels 333 
 
 is only over mesfesours trovez seisiz that such a lord 
 has jurisdiction. Clearly, to say that a thief was taken 
 seisitus de furto, or seisitus de lairocinio, was to use a 
 technical phrase about an important point. It is used 
 in the Assize of Clarendon — "si aliquis fuerit captus 
 qui fuerit seisiatus de roberia vel latrocinio." Bracton 
 again (fol. 122) says that if the coroner hears of treasure 
 trove he must inquire si aliquis inde inventus sit seisitus. 
 Elsewhere (fol. 440 b) he discusses what is to be done 
 if the defendant in an action of debt will not appear ; 
 his suggestion is, bonum esset adjudicare querenti ab 
 initio seisinam catallorum secundum, quantitatem debiti 
 petiti. 
 
 Between Glanvill and Bracton we might have 
 noticed an entry in the Placitorum Abbreviatio (p. 12) 
 of Richard the First's time. The roll of the King's 
 Court says that the wax in question has been replevied, 
 and that he whose it was is seised of it {cera ilia fuit 
 replegiata et tile cujus ilia fuit est inde saisitus). Just 
 from Bracton's time the same book gives a count in 
 trespass, which charges the defendant with having sent 
 his men to violently interrupt the proceedings of a jury, 
 et de quodam juratore abstulerunt quemdam gladium et 
 adhuc sunt in seisina de eodem gladio (p. 129, Mich. 
 37 & 38 Hen. III.). 
 
 An examination of rolls belonging to the first years 
 of Henry the Third has supplied a dozen criminal 
 cases in which the seisin (always seisina and never 
 possessio) of chattels is treated as a most important 
 matter. It is just a question of life and death whether 
 the thief was taken in seisin of the stolen goods 
 {seisitus de bonis furatis), whether the manslayer was 
 
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334 T^^^ Seisin of Chattels 
 
 taken in seisin of the murderous weapon {seisitus de 
 cnipulo sanguinolento). If he was seised he can be 
 hanged offhand; if he was not seised, then, unless he 
 will put himself upon his country, he cannot even 
 be tried, he can only be kept in custody. Sometimes 
 a phrase that is yet more " feudal " is found, the thief 
 was " vested and seised " of the stolen goods. The 
 Mayor and bailiffs of Wallingford took a man vested 
 and seised of an instrument for clipping coins :■ — 
 invenerunt ipsi predictum Johannem vestitum et seisi- 
 tum de seisina ilia ; he of course denied the seisin, 
 deffendit saisinam illam\ Another man had stolen 
 tin at Bodmin ; the appellor saw him vested and 
 seised of the tin and burying it in the ground : — ipsum 
 vidit vestitum et seisitum de stagno furato^ One 
 other case" is noticeable for many reasons. The 
 justices in eyre who went to Devonshire in 1218 
 hanged two men for receiving stolen goods. Their 
 sons appealed to the king against the consequent 
 forfeiture — "et quia videtur consilio domini regis et 
 iusticiariis de banco quod male et iniuste suspensi 
 fuerunt eo quod non fuerunt seisiti de aliquo furto vel 
 roberia, nee aliquam roberiam cognoverunt, nee per 
 dictum iuratorum potuerunt de iure dampnari, con- 
 sideratum est quod heredes eorum non exheredentur, 
 
 ' Roll for Michaelmas Term, 5 & 6 Hen. III. (known at the 
 Record Office as Coram Rege Roll, Hen. HI. No. 12), memb. 12. 
 What he was seised of was a tonsura. I gather from the context that 
 this means an instrument for clipping. See Ducange, s.v. tonsura. 
 
 ^ Ibid. memb. 14. 
 
 ' Roll for Michaelmas Term, 3 & 4 Hen. IH. (Coram Rege 
 Roll, Hen. HI. No. 3), memb. 15, dors. 
 
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The Seisin of Chattels 335 
 
 et ideo preceptum est vicecomiti quod eis terram suam 
 habere faciat etc., et iusticiarii in misericordia" ! Justices 
 at this date had occasion to know something about the 
 seisin of chattels. As to possessio and possideS, I have 
 never yet found these words on any of these early rolls 
 save in one context. The exception is instructive : — 
 the parson possesses {possidet) the church. Here we 
 touch the domain of the Canon Law ; the fact of 
 possession is to be established by the bishop's certifi- 
 cate. But we will go back to the evidence already in 
 print, which really is sufficient for our purpose\ 
 
 The recently printed Year Books of Edward the 
 First give us several examples. I quote Mr Hor- 
 wood's translations. 
 
 21 & 22 Edwd. I, p. 10. Note, that in the Replegiari, the plea 
 ought not to proceed while he who took the beasts is seised 
 of what he took (est seysy de la prise). 
 
 21 & 22 Edwd. I, p. 20. Note, that where one complains that 
 B tortiously took his chattels, such as corn or other chattels 
 (except beasts), he ought to mention the value, but there is 
 no need to mention the value of beasts, although the taker 
 is still seised of the beasts (tut seyt le pernur uncore sessi 
 de les avers). 
 
 21 & 22 Edwd. I, p. 56. Note, that where, in an action for 
 taking of beasts, one counts against the lord, and the lord 
 is seised of the beasts (e le seygnur seyt seysi de avers), and 
 avows the taking, there is no need for the plaintiff to reply 
 to the avowry until he has the deliverance made. 
 
 The rule laid down by the first and third of these 
 passages is that which seems to be indicated by the 
 
 '^ There is a note about the seisin of stolen goods in MS. Add. 
 12,269, the note-book discovered by Prof. VinogradofF; this I have 
 copied in Pleas of the Crown, Gloucester, 1221, p. 152. 
 
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33^ The Seisin of Chattels 
 
 seisiatus placitet of the Leges Henrici. If goods have 
 been taken in distress they must be delivered to the 
 claimant or security must be given for their delivery 
 before he pleads to the avowry, and so seisiatus 
 placitet. The second passage gives us the phrase 
 uncore sessi, used to describe the distrainor when no 
 deliverance has yet been made. That phrase will 
 haunt us for some time to come. 
 
 21 & 22 Edwd. I, p. 589. Trespass for taking thirty swans. 
 Plea the plaintiff himself is seised of the swans (seysy 
 de synes). 
 
 32 & 33 Edwd. I, p. 197. Replevin; the plaintiff says that the 
 defendant is still seised of the beasts (uncore seisi de nos 
 avers). 
 
 It is only with the greatest caution that one may 
 cite the Mirror of Justices. The author of that book, 
 who probably wrote in Edward the First's reign, was 
 moved by a bitter hatred of the King's judges, who, 
 in his opinion, were distorting the ancient law and 
 oppressing the people. Unfortunately, he was not 
 content with stating his grievances, but chose to 
 propagate a mass of fables about King Alfred and 
 the old law. The book has never been carefully 
 edited or thoroughly examined, and possibly its writer 
 may hereafter be acquitted of that charge of wilful 
 dishonesty which his would-be quotations from imagi- 
 nary records very naturally provoke. But it is just 
 worth notice that he speaks\ in one and the same 
 breath, of seisin and livery of seisin of lands and 
 goods, and argues that the purchaser of goods ought 
 to be considered as seised of the goods so soon as 
 
 1 Cap. 5, sec. I, § 73 
 
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The Seisin of Chattels 337 
 
 the vendor has quitted them. Livery of seisin is 
 seemingly necessary to perfect the sale of a horse ; 
 and the author, unless I have misunderstood him, com- 
 plains that a brief but actual seisin by the purchaser 
 has not been considered sufficient. 
 
 We have now to face the series of Year Books 
 stretching, with some breaks, from Edward the Second 
 to Henry the Eighth. 
 
 Hil., 14 Edwd. II, fol. 421. Count in replevin, the defendant 
 
 has taken beasts et uncore est seisi. 
 Mich., 18 Edwd. II, fol. 561. Similar count, vous estes unqore 
 
 seisi. 
 Hil., 10 Edwd. Ill, fol. 5, pi. 14. Similar count, et dit que il 
 
 fuist uticore seisi des avers. 
 Hil., 21 Edwd. Ill, fol. 51, pi. 3. Similar count, et counta que 
 
 ilfut encore saisi del' boef. 
 Mich., 38 Edwd. Ill, fol. 22. Trespass : the lord who has 
 
 taken a heriot says, that because it was the best beast nous 
 
 le seisimes apres la mort G. etfuimes seisis tanque vous, etc. 
 
 Hil, 39 Edwd. Ill, fol. 4. The king has been seized of an 
 
 estray, ad este seisi, for a year and day. 
 Hil., 42 Edwd. Ill, fol. 6, pi. 18. Plaintiff counts that the 
 
 defendant has arrested his wool et adhuc in arrestatione 
 
 detinet. Plea, the plaintiff himself ceo jour est seisie de 
 
 les biens. 
 
 Mich., 47 Edwd. Ill, fol. 23, pi. 55. Plea in trespass de bonis 
 aportatis : un J. W. fuit seisie de mesmes les chateaux, et 
 tnorust seisie, et fist mesme cestuy R. son executor, le quel 
 seisist les chateaux. In the discussion, possession and seisin 
 are used indiscriminately. 
 
 Mich., 6 Rich. II [Fitz. Abr. tit. Replication, pi. 60]. Nostre 
 testatour tnorust seisi de mesme les biens apres que mort nous 
 les happamus et de eux seisi fuomus tanque les defendants les 
 pristrent hors de rwstre possession. Three times in a brief 
 note occurs this phrase — morust seisi de mesmes les biens. 
 
 M. 22 
 
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338 The Seisin of Chattels 
 
 Must we not say, with the reporter, issint vide que moreant 
 seis\ de Mens est material 
 
 Pasch., 7 Hen. IV, fol. 15, pi. 20. // mesme est seisie de mesmes 
 les biens. 
 
 Mich., 1 1 Hen. IV, fol. 2, pi. 4. // detient uncore nos berbits et 
 est seisie. 
 
 This phrase, still seised, with which we are now 
 becoming famiHar, occurs also in a petition to the King 
 in Parliament of 1321-1322. The parson of Kippax, 
 in Yorkshire, complains that certain persons have 
 driven off his horses and sheep, and that the beasts 
 have come to the hands of the Earl of Arundel's 
 bailiffs, who uncor sunt seisis de eux. [Rot. Pari., 
 vol. I., p. 394, no. 41.) 
 
 I have not cited by any means all the instances in 
 the books of Edward the Second and Edward the 
 Third that have caught my eye, but I have probably 
 cited quite enough to show that in the fourteenth 
 century it was common to speak of a man as seised of 
 movables. There is a long, and I think unbroken, line 
 of cases which show that the usual form of a count in 
 replevin, when the beasts had not yet been delivered, 
 stated that the distrainor was still seised of the beasts. 
 But some of our examples will prove that similar 
 phrases were used in other contexts. It was quite right 
 to say, for example, that a testator died seised of goods, 
 and that afterwards his executors were seised. 
 
 But now there begins a change in the terms used 
 in replevin cases. In Pasch,, 7 Hen. IV, fol. 11, pi. 2, 
 we find il detient a tort, where, according to precedent, 
 we should have expected uncore seisi. But the 
 struggle between the two phrases is not yet over. 
 
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The Seisin of Chattels 339 
 
 Twice in the early years of Henry the Sixth we meet 
 with the older term. 
 
 Mich., 3 Hen. VI, fol. 15, pi. 20. Nous vous disons que le 
 defendant est uncore seisi de les avers. 
 
 Nous disons que vous mesmes estes seisis de eux. 
 
 Hil., 4 Hen. VI, fol. 13, pi. 11. Le defendant est uncore seisi 
 del' taure. 
 
 These are the last instances that I have at hand. 
 From this time onwards uncore seisi seems definitely 
 supplanted by uncore cktient. Thus we have : — 
 
 Pasch., 21 Hen. VI, fol. 40, pi. 8. II uncore detient nos bestes. 
 
 Hil., I Hen. VII, fol. 11, pi. 16. II uncore detient. 
 
 Mich., 5 Hen. VII, fol. 9, pi. 21. Et le plaintiff counta sur un 
 Uncore detient. 
 
 I have kept back to the last, perhaps the most 
 striking piece of evidence, because of its somewhat 
 uncertain date. The Novae Narrationes is a brief 
 collection of precedents for counts or declarations in 
 French. It was printed by Pynson without date\ and 
 was more than once reprinted. Coke in one of his 
 prefaces (3 Rep.) puts it into a class of old books along 
 with Glanvill, Bracton, Britton, Fleta and Hengham, 
 which he distinguishes from a class of newer books, 
 comprehending the Old Tenures, the Old Natura 
 Brevium and Littleton. In another of his prefaces 
 (ro Rep.) he says that the Novae Narrationes was 
 published "about the reign of King Edw. III." The 
 Latin version of the same preface has the more definite 
 "juxta initium regni Regis Edw. 3 in lucem prodiit." 
 
 1 "? 1515 " Cat. Brit. Mus. 
 
 22 — 2 
 
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340 The Seisin of Chattels 
 
 This date, however, is too early for the book as printed, 
 for just at the end of it there is a declaration on the 
 Statute of Labourers, which declaration is supposed to 
 be made after the third year of Richard the Second. 
 More about its date I cannot say. Near the end of 
 Henry the Sixth's reign ^ the judges treat Les Novels 
 Tales as a very high authority. Coke says that the 
 book to which they refer is the work now in question, 
 the Novae Narrationes. 
 
 Now, this book contains a precedent for a count in 
 replevin, which describes the distrainor as still seised, 
 unquore seisi^. There is also a count in detinue by the 
 purchaser of a cow, who has paid a penny in earnest 
 {en arras), and it sets forth that cesty A. luy bailla tin 
 denier en arras, et del denier ilfuit seisie^. 
 
 The appearance of such phrases in a book of pre- 
 cedents is strong evidence that they were at least 
 permissible, but I am not sure that it is stronger 
 evidence than that afforded by the Year Books. It 
 should not be forgotten that some of the instances 
 above cited come from a time when pleadings were 
 jealously scanned, in the hope that some verbal flaw 
 might be detected in them ; but though it is easy to 
 find examples of objections, and successful objections, 
 which seem to us very captious and unreasonable, 
 I have not met with any instance in which exception is 
 taken to the use of this word seised in connection with 
 chattels, personal or real. 
 
 Now, however, we must cite the decisive passage 
 in Littleton's Tenures (sec. 324), which proclaims once 
 
 1 Mich., 39 Hen. VI, fol. 30, pi. 43. 
 ' Ed. 1561, fol. 62 b. ' Fol. 68. 
 
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The Seisin of Chattels 341 
 
 and for all that the dififerentiation between seisin and 
 possession has taken place : — 
 
 " Also, when a man [in pleading^] will show a 
 feoffment made to him, or a gift in tail, or a lease for 
 life of any lands or tenements, then he shall say, by 
 force of which feoffment, gift, or lease, he was seised, etc., 
 but where one will plead a lease or grant made to him 
 of a chattel, real or personal, then he shall say, by force 
 of which he was possessed, etc." 
 
 Littleton, it is supposed, wrote between 1474 and 
 1 48 1. We have brought down our series of counts in 
 replevin containing the words uncore seisi to 1426. 
 The series containing uncore detient begins in 1443. 
 Of course very little stress should be laid on these 
 dates, for many cases may have been overlooked, and 
 it would be easy to draw false inferences from the casual 
 use of a phrase. Still the evidence tends to show that 
 there had been a change in the terms used in pleading, 
 just long enough before Littleton's day to make his 
 express statement intelligible. 
 
 We have not yet spoken of chattels real, and will in 
 this instance reverse our procedure and work from the 
 latest authority to the earlier. And here the first 
 witness to be called is Littleton himself, for he says 
 (sec. 567), " Also if a man letteth tenements for term 
 of years by force of which lease the lessee is seised," 
 thus himself using the very phrase that he has con- 
 demned as incorrect. We shall easily pardon this slip 
 if we look to the older authorities, for at worst it was 
 an archaism. 
 
 What we should expect in such a context of course 
 ^ The words in brackets are in some very old editions. 
 
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342 The Seisin of Chattels 
 
 is "by force of which he is possessed," or, in the 
 orthodox law Latin, " virtute cujus possessionatus est." 
 Just about Littleton's time we find this phrase in the 
 Year Books. 
 
 Mich., 21 Edwd. IV, fol. lo, pi. i. Par force de quel il fuit 
 possesse. But some seventy years earlier the other phrase 
 occurs. 
 
 Pasch., I Hen. V, fol. 3, pi. 3. Count in Ejectione firmae : 
 lease for twenty years, par force de quel ilfuit seisie. 
 
 In the earlier Year Books there are very few 
 instances in which a leaseholder pleads his title ; but, 
 skipping a century, we have 
 
 Mich., 6 Edwd. II, fol. 177. Count in Quare ejecit : lease for 
 
 ten years, par quel lese A. fuist seisi. 
 Mich., 3 Edwd. II, fol. 49. Count in Covenant by lessee ; lease 
 
 for 10 years to A., par quel lees il fuist seisi ii aunz. 
 
 Instances from the reign of Edward the First are 
 still plainer : — 
 
 32 & 33 Edwd. I, p. 529. Covenant; count by a lessee 
 
 on a lease for five years of the provostship of Derby ; 
 
 the count, as enrolled in Latin, states that the lessees 
 
 were seisiti. 
 30 & 31 Edwd. I, p. 142. Covenant; count that J. leased the 
 
 land to Roger for eight years par quel lees il fut seisy for a 
 
 certain time, and that then Roger leased to Robert par 
 
 queuz lees ilfut seisy for four weeks. 
 21 & 22 Edwd. I, p. 23. Count in covenant by lessee of a rent ; 
 
 lease for ten years par queu les yl fut seysy de cele par 
 
 deus anz. 
 20 & 21 Edwd. I, p. 254. Covenant by lessee; defendant 
 
 says that by virtue of a lease for twenty years the plaintiff 
 
 fut sesy. 
 20 & 21 Edwd. I, p. 278. Covenant by lessee's son; lease for 
 
 twenty years to my father, par quel les yl fut seysy un an. 
 
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The Seisin of Chattels 343 
 
 It will occur to the reader, that the value of this 
 evidence depends on the comparative frequency of the 
 words seised ^nA possessed in counts by leaseholders ; I 
 must say therefore, that while I can produce, from the 
 Year Books of the two first Edwards, seven examples 
 of pleadings which describe the termor as seised, I 
 have not found one in which he pleads that he is 
 possessed. Certainly, my investigations have been 
 far from exhaustive, and have consisted rather in 
 following the references given in indices and abridge- 
 ments under hopeful headings, than in fairly reading 
 from cover to cover, but unless, round about the 
 year 1300, it was strictly and technically correct to 
 plead that a termor is seised by force of his lease, 
 I have had a very strange run of bad luck. 
 
 Lastly, we may again refer to the Novae Narra- 
 tiones and there find several precedents of Covenant, 
 Quare ejecit, and Ejectione firmae, in which the termors 
 are made to say that they are seised. Thus, Hubert 
 Mappe leased a messuage to Adam Pye for a term of 
 years not yet ended, per qui le dit Adam fuit seisy 
 del mees avaundit. On the other hand, in one of the 
 precedents the termor is said to have been in peaceable 
 possession. It is noticeable that this is a precedent 
 in Ejectione firmae, a specialised form of trespass vi 
 et armis, and a newer remedy for the termor than the 
 Quare ejecit, or the still older writ of covenant. This 
 would lead us to believe that it did not become 
 definitely wrong to speak of the termor as seised until 
 after the end of the fourteenth century, and we have 
 seen one precedent which contains the objectionable 
 phrase in the Year Book of 141 3. 
 
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344 The Seisin of Chattels 
 
 Here again, then, our evidence points to the fifteenth 
 century as the time when the distinction was first 
 firmly estabUshed. But probably the differentiation 
 was a gradual process. At first possessio and seisina 
 are the same thing. Take two very old maxims with 
 which all lawyers are still well acquainted. If we ask 
 ^\iy possessio fratris de feodo simplici facit sororem esse 
 haeredem, the answer is because seisina facit stipitem. 
 But gradually, as it seems to me, the words become 
 appropriated, and the lawyers in the Year Books, 
 though, in pleading, they will speak of a man as seised 
 of chattels, begin to talk of possession directly they 
 begin to argue. It looks as if seised was becoming an 
 antiquated word to use of chattels, a word which one 
 might still have to use in formal pleading, but one 
 which struck the ear as antiquated, or, perhaps, even 
 incorrect. But what flaw could be seen in it ? The 
 answer will probably be found in the curious history of 
 leaseholds, for the beginning of which we may look in 
 Bracton's book. 
 
 Now Bracton, as already said, has to mention 
 possessio and seisina a very large number of times, and 
 always treats them as interchangeable; as Dr Gliterbock 
 has well said\ beide Worte werden promiscue ge- 
 braucht. His definition of possessio is founded on 
 the Roman authorities, but is taken directly from the 
 Italian lawyer Azo. Possessio est corporalis rei 
 detentio, i.e. corporis et animi cum juris adminiculo 
 concurrente (fol. 38 b). Now, whatever Azo may 
 have meant by this requirement of juris adminiculum 
 (and he seems to have thought it necessary in order to 
 ' Henricus de Bracton, p. 59. 
 
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The Seisin of Chattels 345 
 
 include certain cases of constructive possession), seem- 
 ingly Bracton meant no more than that there are 
 certain persons and things, such as free men and 
 things sacred, of which there can be no possession 
 (fol. 44 b). In general, he remains quite faithful to 
 the notion that seisin or possession is pure matter of 
 fact, the detention by body and mind of a corporeal 
 thing. Nor is this mere Roman ornament, which can 
 be stripped off without damage to the fabric of English 
 law as reared by Bracton, for on this depends his 
 whole learning about the scope of that commonest of 
 all actions the assize of novel disseisin. Lord Mans- 
 field's theory that seisin implies some act or concurrence 
 on the lord's part most certainly is not Bracton's 
 theory. Seisin with him is simply possession, and 
 has little to do with homage or fealty'. 
 
 It is, of course, possible that Bracton's very rational 
 account of seisin is just a little too rational, but we have 
 the clearest proof that it is not mere romance, and we 
 may doubt whether on any other part of our law the 
 Latin learning of the thirteenth century made so 
 practical and so permanent an impression. We have, 
 happily, now in print a considerable collection of 
 assizes taken during that period, and they constantly 
 put before us seisin as simply and merely possession, a 
 matter of fact independent of feudal relationships and 
 
 ' See Butler's note to Co. Lit. 330 b. Dr Heusler {Die Gewere, 
 p. 441), whose work I had not seen when I wrote the above, says that 
 Bracton's seisin is Besitz einfach und schlechtweg. This seems to me 
 perfectly true. I am happy in being able to add that in the last 
 number of this Review Mr Robert Campbell (p. 186) and Mr Justice 
 Holmes (p. 168) have written what makes for the same end. 
 
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346 The Seisin of Chattels 
 
 institutions. When the question is whether a certain 
 person was seised, if there be any mention at all of 
 homage or fealty, of suit or service (and such mention 
 is comparatively rare), these matters are treated, not as 
 constituting seisin, but as being evidence of seisin, 
 evidence tending to prove that this man or that was 
 really possessor. Roger Clifford, for example, in the 
 36th of Henry the Third, brings an assize of mort 
 d'ancestor against his younger brother, Geoffrey. 
 Geoffrey pleads a gift made to him by their father, 
 John, in his lifetime. Roger replies that the gift is 
 naught, because John never really gave up possession 
 to Geoffrey. The words are remarkable : quia quamvis 
 Johannes pater ipsorum terram illam ei [Galfrido] 
 dedisset per cartam, nunquam. se dimisit de terra 
 ilia corpore nee animo. Then the assize finds the facts 
 at length, and, among them, that John went on doing 
 suit for the land after the gift. This is put before 
 the court, not as conclusive, but as one of many facts 
 which prove that John never ceased to possess, though 
 he went through the idle form of gbing off the land 
 and sleeping somewhere else for a night. [Placit. 
 Abbrev., p. i28\) This is a type of a considerable 
 class of cases. Having no testamentary power, land- 
 owners will try both to give and to keep. The court 
 deals with such cases in a most reasonable way ; full 
 statements of the relevant facts are obtained from the 
 assize, and the decisions are really no more dictated by 
 feudalism, in any sense of that hard-worked word, than 
 
 ^ I have seen this case on the roll. It was heard by Bracton 
 himself, and perhaps the romanesque tag (corpore nee animo) may 
 come from him. 
 
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The Seisin of Chattels 347 
 
 are modern decisions about voluntary settlements. 
 Doubtless, there was a constant tendency to make 
 seisin a matter of forms and ceremonies, of sacramental 
 acts with rod or twig or hasp of door. So long as 
 possession has legal consequences some persons will 
 always be trying to substitute mummery for the real 
 thing. " Of which goods and chattels, I, the said T. A., 
 have put the said F. C. in full possession by delivering 
 to him one chair"; the date of this formula is not 1268 
 but i868\ But the thirteenth century decisions on 
 the question, seised or not seised, show a remarkable 
 disregard for formalities, a remarkable determination 
 to make that seisin which the law protects just a real 
 and actual possession. 
 
 But this by the way; Bracton, though he does not 
 distinguish between seisin and possession, has another 
 distinction which is noteworthy. He repeatedly 
 distinguishes between being in seisin and being seised, 
 between being in possession and possessing. One who 
 possesses or is seised has, if ejected, the assize of novel 
 disseisin, but a person may be in seisin or possession 
 nomine alieno, and if he be ejected the possessory 
 remedy belongs not to him, but to that other on whose 
 behalf he was in possession. Thus, in one place he 
 turns our modern terminology just upside down ; the 
 farmer is in seisin, but he does not possess (fol. 165); 
 quia longe aliud est esse in seisina, quam seisitus 
 esse, sicut longe aliud est esse in possessione quam 
 possidere" (fol. 206). In the view that he generally 
 
 1 L. R., 9 Eq. 511. 
 
 ° Aliud est enim possidere, longe aliud in possessione esse. 
 Ulpian, Dig. de acquir. vel amitt. possess. (411 z) 10. 
 
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348 The Seisin of Chattels 
 
 takes the termor does not really possess, he only holds 
 possession for his landlord, and this is the reason why 
 he has not the possessory remedy, the assize of novel 
 disseisin. 
 
 We are familiar with the saying that, of old, the 
 termor was little more than his landlord's servant or 
 bailiff. Now, it is a very natural thing indeed to say 
 that a servant does not possess his master's lands or 
 goods, though he has sole charge of them. Mr Justice 
 Holmes, in his lecture on possession, has well remarked 
 how freehanded our old law was of its possessory 
 remedies, how it attributed possession of goods to 
 bailees whom the civilians would not have accounted 
 possessors ; still it drew the line above the servant who, 
 in his master's house, has custody of his master's goods. 
 Now, in Bracton's opinion, the termor is denied the 
 assize, not because he has a less estate than becomes a 
 free man (is there really any record of a free man 
 saying that a term of years was beneath his dignity ?), 
 but because tenet nomine alieno ; in this he resembles 
 the custos, procurator, usurarius, hospes, servus (fol. 
 165, 167 b, 168, 206). 
 
 Bracton's adoption of this phraseology prepared a 
 difficulty for him which he had to meet (fol. 220) when 
 explaining how, after all, the termor has a possessory 
 remedy against some ejectors, and a remedy which will 
 restore him to possession, the Quare ejecit infra termi- 
 num. But it seems from Bracton's own words that 
 the difficulty was quite new, because this remedy had 
 but recently been invented by the court (de consilio 
 curiae), as a more efficient protection than the old writ 
 of covenant. In later days tradition ascribed the 
 
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The Seisin of Chattels 349 
 
 invention of the new writ to Bracton's contemporary, 
 Walter of Merton (Old Natura Brevium, fol. 122 b), 
 and more than once in the Year Books the writ is 
 noticed as an innovation. Now, so long as the writ 
 of covenant was the termor's one remedy, it was very 
 natural and proper to deny that he possessed ; he had 
 not a possession which the law protected, he had 
 merely a contractual right. But the newly invented 
 remedy had given him a sort of possession ; it enabled 
 him to recover his term if ejected, at least if the ejector 
 was a purchaser from his lessor, and, whatever may 
 have been the rule at a later date, Bracton apparently 
 thought^ that this writ would enable the termor to 
 recover his term even if ejected by a stranger. In 
 describing this remedy he has to allow the termor a 
 sort of possession, or rather, as it happens, a sort of 
 seisin (fol. 220 b). His Roman authorities suggest to 
 him that the termor has a usufruct, that a usufruct is 
 but a servitude, something like a right of way. This, 
 perhaps, should have led him to say that the termor 
 has not possession of the land, but only quasi- 
 possession of a servitude over land possessed by 
 another (iuris quasi possessio), but I do not think that 
 he quite accepts this doctrine, and the most explicit 
 statement to be had from him is that both lessor and 
 lessee are in seisin of the tenement, the one as of his 
 term, the other as of the freehold, quia istae duae 
 
 ' Fol. 220. Observe the words contra quoscunque dejedores. As 
 to the later law see F. N. B. 197. The writ given by Bracton 
 supposes a sale by the lessor to the ejector, but it seems to me that 
 Bracton thought this only an example. It appears from F. N. B. to 
 have been questionable whether the allegation of a sale was traversable. 
 
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350 The Seisin of Chattels 
 
 possessiones sese compatiuntur in una re quod unus 
 habeat liberum tenementum et alius terminum (fol. 1 3 b). 
 Elsewhere (fol. 264) he can casually speak of tenant for 
 years as seisitus. 
 
 Very probably Bracton's verbal distinction between 
 being in seisin and being seised, between being in 
 possession and possessing, was a little too subtle to 
 catch the English ear; and certainly the suggestion 
 that a termor's interest is a servitude over another's 
 land, so that the termor is quasi-possessed of a 
 servitude, but not possessed of land, did not take 
 root in this country. It would have been difficult 
 to work that suggestion into a system of law which, 
 from the outset, most unhesitatingly gave seisin to the 
 tenant for life. A student, fresh from Roman law or 
 " general jurisprudence," maybe puzzled when he finds 
 Mr Joshua Williams treating an estate in remainder or 
 reversion as an incorporeal hereditament to be con- 
 trasted with that corporeal hereditament an estate of 
 freehold in possession, but in our old law this seems an 
 elementary idea of first importance ; the tenant for life 
 is not a usufructuary with only a servitude and no 
 land ; on the contrary, he has the land, it is the 
 reversioner who has an incorporeal thing. So, I take 
 it that for some considerable time after Bracton's day 
 it was a matter of much uncertainty how the termor's 
 interest should be conceived ; and lawyers were free to 
 say, and did actually say, that the termor is seised of 
 the land as of his term, while his lessor is seised of the 
 land as of freehold. There was no great need for the 
 decision of an almost metaphysical question. During 
 the thirteenth and fourteenth centuries the termor 
 
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The Seisin of Chattels 351 
 
 played but a very insignificant part in English law. 
 Gradually, however, he forced himself upon the notice 
 of the courts, and acquired one remedy after another 
 for the protection of his term. It became necessary to 
 fix his position. What could be said of him ? It was 
 quite impossible to regard him any longer as one who 
 holds possession on behalf of another ; on the other 
 hand, it was important to mark the fact that his 
 remedies were very different from the old possessory 
 remedies of the freeholder. He had never had, he 
 never acquired, the assize of novel disseisin, though we 
 may note by the way that the author of the Mirror, in 
 several passages, declared that it is an abuse of the law 
 to deny this assize to the termor and to the tenant in 
 villenage\ A word to describe the termor's situation 
 was wanted, and possession (a term comparatively free 
 of technical implications) lay vacant and unappro- 
 priated. The termor, then, is possessed, not seised. 
 It is rather the verbal solution of the difficulty than 
 the difficulty itself that is peculiar to England. In the 
 yet unromanized law of mediaeval Germany Gewere (a 
 word which we can only translate by seisin) plays, as I 
 understand, very much the same part that seisin plays 
 in England and in France ; not quite so important 
 a part, because Henry the Second's institution of 
 definitely possessory remedies gave to possession a 
 peculiar prominence in English and in Norman law, 
 but still an important part. Now those who have 
 of late studied the vast stores of old German law say 
 that the German notion of Gewere differs from the 
 Roman notion of possessio in this, that at one and the 
 
 ^ Abuses of the Common Law, 72, 76, and again in the Articles on 
 Stat. Westm. 2. 
 
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352 The Seisin of Chattels 
 
 same time lord and tenant, or lord, mesne and tenant 
 may have possession. The cultivator who is sitting on 
 the land is seised of the land, but the lord also to whom 
 he pays rent in money or kind is seised of the land. 
 In a dispute between tenant and lord seisin and its 
 procedural advantages are with the former, but in 
 relation to outsiders each is seised. As Bracton says, 
 istae duae pbssessiones sese compatiuntur in una re. It 
 would indeed have been hard to force the wonderfully 
 variegated phenomena of mediaeval land tenures into 
 the pigeon-holes of a theory which will ascribe posses- 
 sion to but one person at a time, and say of all others, 
 Non possident. And this, it is said, is what obscures 
 the discussion of the Roman possessio by commentators 
 and glossators, by Azo, for example. With the facts 
 of their own time before them they could not hold 
 the faith unitarian and Roman of one dominium and 
 one possessio; the lord has dominium directum, the 
 vassal dominium utile, the lord possesses civiliter, 
 the vassal possesses naturaliter, but none the less 
 possesses for himself, and not for the lord : hence some 
 wonderful confusions which Savigny had to clear 
 away. We in England were fortunate in finding 
 a second word at our disposal ; so the termor is 
 possessed and the freeholder is seised \ 
 
 From this it would be no long step to the assertion 
 that there is no seisin of chattels, neither of chattels 
 real nor of chattels personal. For why is not the 
 termor seised ? The ready answer would be because 
 
 ^ Laband, Die Vermogensrechtliche Klagen, especially pp. 158- 
 166; Heusler, Die Gewere, especially pp. 1 14-144, 299-304; and a 
 brief account by Brunner in Von Holtzendorff, Encyclopaedie, Erster 
 Theil(4'^Aufl.), p. 248. 
 
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The Seisin of Chattels 353 
 
 he has but a chattel. The origin of this strange sajnng 
 " a term of years is a chattel " is not very certain, but 
 seemingly it meant that the term could be bequeathed ; 
 for testamentary purposes it was quasi catallum. 
 Bracton says (fol. 407 b) that the ecclesiastical court 
 is not to be prohibited from entertaining a suit touching 
 the bequest of a term, quia ususfructus inter catalla 
 connumeratur. It was catallum as contrasted with 
 that laicum feodum with which no Court Christian may 
 meddle. The necessity for this fiction would in course 
 of time be forgotten. The obvious facts would be that 
 the termor is not seised and that the termor has a chattel ; 
 an inference would lie ready to hand. The time had 
 long gone by when it could truly be said of the termor 
 that he held nomine alieno, leases for years were be- 
 coming common and valuable, and it was easier to lay 
 down as one of the final inexplicabilities of the law that 
 of chattels, whether real or personal, there is no seisin, 
 than to rake up an old story. It may seem a far-fetched 
 doctrine that the reason why we cannot now be seised 
 of a horse, or of a book, is because there was a time 
 when the tenant of land for term of years had only a 
 contractual right, but far-fetched though it be, it is 
 fetched from England, not from Lombardy. 
 
 However, what has just been said is no better than 
 guesswork, and is only submitted as such to the reader, 
 who will easily discriminate what is stated as fact from 
 inferences and conjectures. But he will notice that 
 such evidence as has been produced tends to prove 
 that the distinction between seisin and possession 
 became a settled distinction just about the time when 
 the termor's remedies against all men were finally 
 
 M. 
 
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354 T^^^ Sdsin of Chattels 
 
 perfected. The early history of the special writ of 
 trespass known as Ejectione firmae is still in some re- 
 spects obscure. It became the termor's remedy against 
 a stranger to the title who ejected him. Now, at the 
 very end of the fourteenth century, it seems perfectly 
 settled that this writ (unlike the Quare ejecit which will 
 lie against a purchaser from his lessor) will only give 
 him damages, and will not restore him to the land\ 
 On the other hand, about the middle of the fifteenth 
 century lawyers certainly speak as though possession 
 might be recovered by this writl It is usual to refer 
 to a decision in Henry the Seventh's reign as having 
 finally settled the question in favour of restitution. 
 May we not, therefore, conjecture that the daily 
 increasing necessity of distinguishing the title to bring 
 Ejectione firmae from the title to bring an assize, 
 forced upon the courts the verbal distinction between 
 possession and seisin ? 
 
 And when the middle ages are past and over, and 
 Coke is summing up their learning, though he has 
 many surprising things to tell us about the consequences 
 of seisin, he can tell us no more about its meaning than 
 that it is possession, but appropriated to freeholds. 
 These are his sayings : — 
 
 Seisin or seison is common as well to the English 
 as to the French, and signifies in the common law 
 possession, whereof seisina a Latin word is made, and 
 seisire a verb (Co. Lit. 153 a). 
 
 ^ Pasch., 6 Ric. II (Fitz. Abr. tit Ejectione firmae, pi. 2). We are 
 still dependent on Fitzherbert's extracts for cases from this important 
 reign. 
 
 ' Pasch., 7 Edw. IV, fol. 6, pi. 16 ; Mich., 21 Edw. IV, fol. 11, pi. 2. 
 
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The Seisin of Chattels 355 
 
 Seisin is a word of art, and in pleading is only 
 applied to a freehold at least, as possessed, for distinction 
 sake, is to a chattel real or personal (200 b). 
 
 Seised, seisitus, cometh of the French word seisin, 
 i.e. possessio, saving that, in the common law, seised or 
 seisin is properly applied to freehold, and possessed or 
 possession properly to goods and chattels ; although 
 sometime the one is used instead of the other (17 a). 
 
 Nothing about investiture or admission of a tenant 
 into the tenure, nothing feudal, simply possession, 
 "i.e. possessio." The distinction has no mysterious 
 basis in the eternal fitness of things ; it is a distinction 
 which exists " for distinction sake." And, after all, of 
 these two words, "sometime the one is used instead of 
 the other." Probably this last phrase does not so much 
 refer to the usage of Coke's own day (for the inter- 
 pretation set upon several important Statutes, in 
 particular the Statutes of Forcible Entry and the 
 Statute of Uses, had by that time made it definitely 
 incorrect for one to write of a termor as seised), as to 
 the usage of an earlier day well known to Coke from 
 his old books. Probably, he would indeed have thought 
 scorn of the meagre list of examples which has been 
 set forth above. In his day it was still too soon for an 
 English Chief Justice to be severely and intelligently 
 feudal. In course of time it became easier to read the 
 Libri Feudorum than to read the Year Books, and 
 " the total silence of Sir Edward Coke on the general 
 doctrine of fiefs" became "a matter of some surprise." 
 Therefore, seisin shall be deemed a " technical term 
 to denote the completion of that investiture by which 
 the tenant was admitted into the tenure." 
 
 23—2 
 
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356 The Seisin of Chattels 
 
 We have been dealing, perhaps, too much with 
 words, too little with rules ; but a recognition of the 
 fact that the lawyers of the thirteenth, and even of the 
 fourteenth century, saw no harm in pleading about the 
 seisin of chattels is of some importance, if the history 
 of seisin, "i.e. possessio," is to be understood. It, at 
 least, warns us away from an untrue explanation of that 
 history. However strange may be the legal conse- 
 quences which we find annexed to the seisin of land, 
 they are not the result of a military policy, or anything 
 of the sort, they are what were once considered the 
 natural consequences of possession ; and there is good 
 reason for believing that, if we look closely enough at 
 our comparatively few and scattered authorities for the 
 early history of personal property, we shall find very 
 much the same consequences annexed to the seisin of 
 chattels. 
 
 It is very unfortunate that the passage (f. 220 b) in which Bracton 
 most definitely faces the question as to the nature of the termor's 
 possession has become mere nonsense in the printed books. He is 
 speaking of freeholder and termor and of the action Quare ejecit. 
 This is what his latest editor makes him say ; but the bracket [ ] is 
 mine. 
 
 Poterit enim quilibet illorum sine praejudicio alterius, [quia recte 
 dicimus totu nostrum fundum esse, et cum usus fructus alienus sit, 
 quia no dominii pars est usufructiis, sed servitus fit vel viaetc.^ Nee 
 fals6 dicitur meum esse, cujus non potest pars dici^ alterius esse] in 
 seysina, esse ejusdem tenementi, unus ut de termino et alius ut de 
 feodo et libero tenemento^ Et datur ista actio haeredibus et 
 competit contra haeredes ut supra in assisa novae disseisinae. 
 
 ^ " servitutis fit, ut via vel iter," MS. Rawl. C. 160. 
 ^ "uUa pars dici," id. 
 
 ' " et ejusdem tenementi unus ut de termino, et alius ut de feodo 
 vel libero tenemento," MS. Rawl, C. 160, 
 
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The Seisin of Chattels 357 
 
 This of course is utter rubbish, and the translation of it given by 
 Sir T. Twiss is neither better nor worse. I think it fairly certain that 
 the bit of romanesque reasoning which I have placed within brackets 
 is one of those marginal notes or glosses which, as Prof. Vinogradoff 
 showed in the last number of this Review, have forced their way into 
 the text. I have looked at twenty-one MSS. Six were indecisive, 
 either because the whole passage had been abridged, or because it 
 was missing or displaced. Five supported the printed text. Two 
 others had done so when first written, but an attempt had been made 
 to set the matter straight. Five give the bracketed passage after the 
 words "et libero tenemento.'' Three and the printed Fleta give it 
 after "in assisa novae disseisinae." Both of these last-mentioned 
 arrangements make sense and the former makes good sense, but 
 when there is so much doubt as to the place in the text at which some 
 forty words should be introduced, the most natural inference is that 
 they should not be in the text at all. Probably we ought to read the 
 passage thus : — 
 
 Text. 
 
 Poterit enim quilibet illorum 
 sine preiudicio alterius in seisina Note. 
 
 esse eiusdem tenementi, unus ut Quia recte dicimus totum 
 
 de termino et alius ut de feodo fundum nostrum esse et cum 
 vel libero tenemento. Et datur ususfructus alienus sit, quia non 
 ista actio heredibus et competit dominii pars est ususfructus sed 
 contra heredes ut supra in assisa servitus sicut via vel iter, nee 
 nova disseisine. falso dicitur meum esse cuius non 
 
 potest ulla pars dici alterius esse. 
 
 What I take to be the gloss is not quite in harmony with the text. 
 The text says boldly that each is in seisin of the tenement ; the note 
 suggests that the termor has only a servitude and no seisin of land. 
 To harmonize English and Roman ideas was no easy task. 
 
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THE MYSTERY OF SEISING 
 
 Any one who came to the study of Coke upon 
 Littleton with some store of modern legal ideas but no 
 knowledge of English Real Property Law would, it 
 may be guessed, at some stage or another in his course 
 find himself saying words such as these : — " Evidently 
 the main clue to this elaborate labyrinth is the notion 
 of seisin. But what precisely this seisin is I cannot 
 tell. Ownership I know and possession I know, but 
 this tertium quid, this seisin, eludes me. On the one 
 hand when Coke has to explain what is meant by the 
 word he can only say"" that it signifies possession, with 
 this qualification however that it is not to be used of 
 movables and that one who claims no more than a 
 chattel interest in land can not be seised though he 
 may be possessed. But on the other hand if I turn 
 from definitions to rules then certainly seisin does look 
 very like ownership, insomuch that the ownership of 
 land when not united with the seisin seems no true 
 ownership." 
 
 The perplexities of this imaginary student would at 
 first be rather increased than diminished if he con- 
 vinced himself, as I have convinced myself and tried 
 to convince others, that the further back we trace our 
 
 ^ Law Quarterly Review, October, 1886. 
 ^ Co. Lit. 17 a, 153 a, 200 b. 
 
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The Mystery of Seisin 359 
 
 legal history the more perfectly equivalent do the two 
 words seisin and possession become, that it is the 
 fifteenth century before English lawyers have ceased 
 to speak and to plead about the seisin (thereby being 
 meant the possession) of chattels \ Certainly as we 
 make our way from the later to the older books we do 
 not seem to be moving towards an age when there 
 was some primeval confusion between possession and 
 ownership. We find ourselves debarred from the 
 hypothesis that within time of memory these two 
 modern notions have been gradually extricated from a 
 vague ambiguous seisin in which once they were blent. 
 In Bracton's book the two ideas are as distinct from 
 each other as they can possibly be. He is never tired 
 of contrasting them. In season, and (as the printed 
 book stands) out of season also, he insists that seisina 
 or possessio is quite one thing, dominium or proprietas 
 quite another. He can say with Ulpian, Nihil com- 
 mune habet possessio cum. proprietate^. 
 
 There are some perhaps who would have for the 
 student's questionings a ready and . brief answer, satis- 
 
 ^ Law Quarterly Review, July, 1885. "The Seisin of Chattels." 
 I am indebted to Mr M. M. Bigelow, Mr H. W. Elphinstone, and a 
 learned critic in the Solicitors' Journaliox several new examples, both 
 very early and very late, of the use of the word seisin in connection 
 with chattels. (See Litt. sec. 177, also Faule v. Moodie, 2 Roll. 
 Rep. 131.) But as to the usage of the thirteenth century, I have now, 
 after having copied more than a thousand cases, no doubt whatever : 
 the words possideo, possessio are extremely rare, but one can be seised 
 of anything, even of a wife or of a husband. I have known a woman 
 assert, in proof of her marriage, that she remained seised of her 
 husband's body after his death. 
 
 ^ Bracton, f. 113, from Dig. 41. 2 (de acquir. vel amit. poss.) 
 12, § I. 
 
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360 The Mystery of Seisin 
 
 factory to themselves if not to him. If, they would 
 say, you are thinking of ownership and applying that 
 notion to English land, -you indeed disquiet yourself in 
 vain; dismiss the idea; it is not known, never has been 
 known, to our law ; land in this country is not owned, it 
 is holden, holden immediately or mediately of the king. 
 The questioner might be silenced ; I doubt he would 
 be convinced. In the first place he might urge, and 
 it seems to me with truth, that the theory of tenure, 
 luminous as it may be in other directions, sheds no one 
 ray of light on the strangest of the strange effects 
 which seisin and want of seisin had in our old law. 
 In the second place he might appeal to authority and 
 remark that Coke, who presumably knew some little 
 of tenures, speaks freely and without apology of the 
 ownership and even the "absolute ownership'" of land, 
 while as to Bracton, who lived while feudalism was yet 
 a great reality, for lands and for chattels he has the 
 same words, to wit, dominium ■a.nd, proprietas. 
 
 But it may well be said, and this brings us to more 
 profitable doctrine, that English law knew no true 
 ownership of land because the rights of a landowner 
 who was not seised fell far short of our modern 
 conception of ownership. Deprive the tenant in fee 
 simple of seisin, and he is left with a right of entry. 
 Even now this would be the most technically correct 
 description of his right. Until" lately his right might 
 undergo a still further degradation ; from having been 
 a right of entry it might be debased into a mere right 
 of action. 
 
 Now it is to the nature of these rights, whether we 
 
 ' Co. Lit. 369 a, 17 a, b. 
 
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The Mystery of Seisin 361 
 
 call them ownership or no, or rather to one side of 
 their nature, that I would here draw attention. To 
 simplify matters as much as possible we may for the 
 moment leave out of account all estates and interests 
 less than fee simple. The question then becomes this, 
 what is the nature of the rights given by our old law 
 to a person who is lawfully entitled to be seised of land 
 in fee simple when as a matter of fact some other 
 person is seised ? or (to use words which will not be 
 misunderstood though they are not the proper words 
 of art) what is the nature of the rights of an absolute 
 owner when some stranger is in possession ? 
 
 Such a student as I have imagined might well be 
 prepared to find that possession by itself, or possession 
 coupled with certain other elements such as good faith 
 and colour of title, or possession continued for a certain 
 period, would have certain legal effects, effects which 
 would consist in protecting the possessor against mere 
 trespassers, in entitling him to recover possession if 
 ejected by a stranger, in depriving the true owner of 
 any right to obtain possession save by recourse to the 
 courts, in at last depriving that owner of all right 
 whatever and conferring on the possessor a title good 
 against all men. He might expect too that in a system 
 rich in definite forms of action, some possessory some 
 proprietary, the outcome of different ages, these effects 
 would be very complicated ; and certainly he would 
 not be, disappointed. He would, for example, find the 
 ousted owner gradually losing his remedies one by one, 
 first the remedy by self-help, then the possessory 
 assizes, then the writs of entry, lastly the very writ of 
 right itself. He would here find much to puzzle him, 
 
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362 The Mystery of Seisin 
 
 for the rules as to the conversion of a right of entry 
 into a right of action seem to us quaint and arbitrary. 
 Still all these manifold and complex effects of posses- 
 sion and dispossession, seisin and want of seisin, are of 
 a kind known and intelligible, partly due to formalities 
 of procedure and statutory caprices, but tending in the 
 main to protect the possessor in his possession and 
 uphold the public peace against violent assertions of 
 proprietary right ; analogies may be found in other 
 systems of law modern as well as ancient. 
 
 But this is far from all. Seisin has effects of a 
 quite other kind. The owner who is not seised not 
 only loses remedies one by one but he seems hardly 
 to have ownership, and this, not because all lands are 
 held of the king, but because as regards such matters 
 as the alienation, transmission, devolution of his rights 
 he seems to be in a quite different position from that 
 in which we should expect to find a person who, 
 though he has not possession, has yet ownership. Let 
 a few rules be repeated that were law until but a short 
 while since. They are well known, but it may be 
 worth while to put them together, for they make an 
 instructive whole. 
 
 (i) Until the ist of October 1845, a right of entry 
 could not be alienated among the living\ In other 
 words, the owner who is not seised has nothing to sell 
 or to give away. 
 
 An explanation of this rule has been found, in the 
 
 law's dislike of maintenance. It may be given in the 
 
 words of Sir James Mansfield : — " Our ancestors got 
 
 into very odd notions on these subjects, and were 
 
 ' 8 & 9 Vict. c. 106, sec. 6. 
 
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The Mystery of Seisin 363 
 
 induced by particular causes to make estates grow out 
 of wrongful acts. The reason was the prodigious 
 jealousy which the law always had of permitting rights 
 to be transferred from one man to another, lest the 
 poorer should be harassed by rights being transferred 
 to more powerful persons\" This bit of rationalism is 
 of respectable antiquity; it is certainly as old as Coke's 
 day"" ; and true it is that at one time our laws did 
 manifest a great, but seemingly most reasonable'*, 
 jealousy of maintenance and champerty, of bracery and 
 the buying of pretenced titles. But still the explana- 
 tion seems insufficient. Its insufficiency will be best 
 seen when we pass to some other rules. In passing, 
 however, let us notice how deeply rooted in our old 
 law this rule must be. We come upon it directly we 
 ask the simplest question as to the means of transferring 
 ownership. What is the one " assurance," the one 
 means of passing ownership, known to the common 
 law ? Why, if we leave out of account litigious pro- 
 ceedings real or fictitious, it is the feoffment, and there 
 must be livery of seisin, that is, delivery of possession. 
 One cannot deliver possession to another when a third 
 person is possessing ; so a right of entry cannot but be 
 inalienable. Or put it this way : our old law has an 
 action which is thoroughly proprietary, which raises 
 the question of most mere right, the writ of right, the 
 only hope of one who cannot base his claim on a recent 
 possessioji. Yet even in the writ of right the de- 
 mandant must count upon his own seisin or on the 
 
 ' Goodright v. Forrester, i Taunt, 613. 
 
 ^ Co. Lit. 213 b; Lampefs Case, 10 Rep. 48 a. 
 
 " Stubbs, Const. Hist., § 295. 
 
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364 The Mystery of Seisin 
 
 seisin of some ancestor, and thence deduce a title by 
 descent ; he cannot count on the seisin of a donor or 
 vendor, " for the seisin of him of whom the demandant 
 himself purchased the land availeth not'." This is a 
 rule which can be traced from Coke to Bracton^ a rule 
 of procedure, be it granted, but a rule which shows 
 plainly that he who has no seisin has nothing that he 
 can give to another. But to this matter of alienation 
 inter vivos we will return. 
 
 (2) Before the ist of January 1838' a right of 
 entry could not be devised by will. About devises of 
 course we cannot expect much ancient common law. 
 The question depended on the meaning of the statutes 
 of 1540* and 1542^; but the manner in which these 
 statutes were interpreted is worthy of note. Through- 
 out the verb used of the person who is empowered to 
 make a will is the verb to have. The person who has 
 any manors, lands, tenements or hereditaments may 
 dispose of them by will. But though some modern 
 judges did not much like the interpretation, still the 
 old interpretation was that the disseised owner has not 
 any land, tenement, or hereditament, and therefore has 
 nothing to leave by his wilP. A case from the year 
 1460 shows plainly that before the statutes a similar 
 rule prevailed ; to give validity to a devise under local 
 custom it was essential that the testator should die 
 
 ^ Co. Lit. 293 a. "^ Bracton, f. 376. ° i Vic. cap. 26, sec. 3. 
 
 ^ 32 Hen. VIII, cap. i. " 34 Hen. VIII, cap. 5. 
 
 ° The cases are collected in Jarman on Wills, 4th ed., vol. i., 
 pp. 49, 50. Perhaps they leave open some questions which will 
 never now be answered. But the main doctrine seems beyond 
 dispute. See Co. 3 Rep. 35 a. 
 
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The Mystery of Seisin 365 
 
 seised, though it was doubted whether he need be 
 seised when making the wilP. 
 
 (3) Until the ist of January 1834'' seisina fecit 
 stipitem. Now this when duly considered seems a 
 very remarkable rule, for it comes to this, that a land- 
 owner who has never been in possession has no right 
 that he can transmit to his heir, or in other words, that 
 ownership is not inheritable. Such a person may be 
 (to use a venerable simile) the passive " conduit-pipe " 
 through which a right will pass, but no one shall ever 
 get the land by reason that he was this man's heir ; a 
 successful claimant must make himself heir to one who 
 was seised. But what explanation have we for this ? 
 A fear of maintenance very obviously fails us, and as 
 it seems to me feudalism must fail us also, unless we 
 are to suppose a time when seisin meant not mere 
 possession but possession given, or at least recognized, 
 by the lord of the fee. But for imagining any such 
 time we have no warrant. It seems law from the first 
 that the rightful tenant can be disseised, though the 
 lord be not privy to the disseisin, and that the disseisor 
 will be seised whether the lord like it or no. 
 
 And to constitute a new stock of descent a very 
 real possession was necessary. The requisite seisin 
 was not a right which could descend from father to 
 son ; it was a pure matter of fact. Even though there 
 was no adverse possessor, even though possession was 
 vacant, the heir was not put into seisin by his ancestor's 
 death; an entry, a real physical entry, was necessary. 
 We all know the old story of the man who was half 
 
 1 Y. B. 39 Hen. VI, f. i8 (Mich. pi. 23). 
 
 2 3 & 4 Will. IV, c. 106 ; Co. Lit. 11 b. 
 
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366 The Mystery of Seisin 
 
 inside half outside the window, and who was pulled out 
 by the heels. It was certainly a nice problem whether he 
 possessed corpore as well as animo ; but at any rate on 
 this depended the question whether he had been seised 
 and could maintain the novel disseisin against those 
 who extracted him\ 
 
 (4) The Dower Act of 1833'' for the first time 
 gave a widow dower of a right of entry ; but for that 
 statute the widow of one who has not been seised goes 
 unendowed. It is true that in this case "a seisin in law 
 or a civil seisin" would answer the purpose of "a seisin 
 in deed^" But this " seisin in law " only existed when 
 possession was in fact vacant. A man was seised 
 neither in fact nor yet in law if some other person had 
 obtained and was holding seisin. If such an one did 
 not get seisin during the coverture his wife would get 
 no dower. 
 
 Here it may be remarked that seisin did to some 
 extent become a word with many meanings or rather 
 shades of meaning. The seisin which is good enough 
 for one purpose is insufficient for another. "What 
 shall be said a sufficient seisin " to give dower, to give 
 curtesy, to constitute a stock of descent, to maintain a 
 writ of right'' — each of these questions has its own 
 answer. But I believe that the variations are due (i) to 
 the treatment of cases in which no one has corporeal 
 possession of the lands, and (2) to the application of 
 the idea of possession to subjects other than lands, 
 namely, the incorporeal hereditaments, an application 
 which must necessarily be difficult and may easily be 
 
 ' 8 Ass. f. 17, pi. 27. ' 3 & 4 Will. IV, cap. 105. 
 
 ' Co. Lit. 31 a. * Co. Lit. 15 b, 29 a, 31 a, 181 a. 
 
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The Mystery of Seisin 367 
 
 capricious. No fictitious seisin in law was, so far as I 
 am aware\ ever attributed to one who however good 
 his title was clearly dispossessed, to one whose land was 
 being withheld from him by a stranger to the title. 
 And the "seisin in law" may well set us thinking. 
 When we hear that A is j9 in law we can generally 
 draw an inference about past history : — it has been 
 found convenient to extend to A a rule which was 
 once applied only to things which were B in deed and 
 in truth ; in short, there was a time when A was not 
 B even in law. For a few but by no means all 
 purposes we may say with the old French lawyers, 
 " le mort saisit le vif "; the seisin in law would, e.£: give 
 dower, but it would not make a stock of descent. 
 
 (5) To give a husband curtesy seisin during the 
 coverture was necessary. This rule has never yet 
 been abolished, though it has been somewhat con- 
 cealed from view both by Equity and by statutes. 
 
 So far we have been concerned with rules which 
 are still generally known, and one of them, the rule 
 about curtesy, has not yet become a matter for the 
 antiquary. It now becomes desirable to glance at 
 some obscurer topics. Since we are sometimes assured 
 that in one way or another the strange effects of seisin 
 and want of seisin are due to feudalism, we ought to 
 ask how the rights of a lord were affected by the fact 
 that "the very tenant," the true owner, was out of seisin 
 and some other person in seisin. 
 
 Suppose tenant in fee simple is disseised and then 
 dies without an heir, what can be plainer on feudal 
 
 ' It may be more to the point that Mr ChaUis (J?ea/ Property, 
 p. 182) has written to the same effect. See Leach v. Jay, 9 C. D. 42. 
 
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368 The Mystery of Seisin 
 
 principles (feudal principles as understood in these last 
 times) than that the land will escheat to the lord, that 
 the lord will be able to recover the land from the 
 disseisor or from any person who has come to the land 
 through or under the disseisor ? But such was not the 
 law even in the last, even in the present century, and 
 if it be law now, a point about which I had rather say 
 nothing, this must be the result either of the statutes 
 which have deprived feoffments and descents of their 
 ancient efficacy or else of a convenient forgetfulness. 
 In Coke's day it seems to have been settled that from 
 the original disseisor the lord could obtain the land 
 either by entry or by action (writ of escheat), provided 
 that he had not accepted the disseisor as tenant. 
 If however before the death of the disseisee the 
 disseisor made a feoffment in fee, or died seised leaving 
 an heir, there was no escheat at all, " because the lord 
 had a tenant in by title " ; he had, that is, a tenant who 
 could not personally be charged with any tort. Of a 
 right of action, as distinguished from a right of entry, 
 there was no escheat ; " such right for which the 
 party had no remedy but by action only to recover the 
 land is a thing which consists only in privity, and 
 which cannot escheat nor be forfeited by the common 
 law\" What is more, it had been held that the most 
 sweeping general words in acts of attainder would not 
 transfer such rights to the crown ; they were essentially 
 inalienable, intransmissible rights. 
 
 But if we go behind Coke we find that so far from 
 the law having been gradually altered to the detriment 
 of the lords, if altered at all it had been altered to their 
 ^ Winchester's Case, 3 Rep. 2 b. 
 
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The Mystery of Seisin 369 
 
 profit. We come to a time when there seems the 
 greatest uncertainty whether the lord can get the land 
 from the very disseisor. The writ of escheat, his only 
 writ, distinctly says that his tenant has died seised. 
 I do not wish to dogmatize about a very obscure 
 history, but it will be enough to say that under 
 Henry VII Brian C.J. denied that the lord could 
 enter or bring action against the disseisor'. 
 
 It was so with the other feudal casualties. Coke 
 says' that if the disseisee die having still a right of 
 entry and leave an heir within age the lord shall have 
 a wardship. Doubtless the law was so in his day, but 
 the earliest authority that he cites is from the reign of 
 Edward III and to this effect — " In a writ of ward it 
 is a good plea that the ancestor of the infant had 
 nothing in the land at the time of his death ; for if 
 he was disseised the lord shall not have a wardship, 
 neither by writ of ward nor by seizing him [the heir], 
 
 ^ It may be convenient if I here collect in chronological order 
 the main authorities as to escheat and forfeiture of rights of entry and 
 rights of action. Reg. Brev. f. 164 (F. N. B. f. 144); 27 Ass. pi. 32, 
 f 136, 137; Fitz. Abr. Entre Congeable, pi. 38 (Hil. 2 Ric. II); 
 2 Hen. IV. f. 8 (Mich. pi. 37); 7 Hen. IV. f. 17 (Trin. pi. 10); 32 Hen. 
 VI. f. 27 (Hil. pi. 16), comp. Litt. sec. 390; 37 Hen. VI. i. i (Mich, 
 pi. i) ; 15 Edw. IV. f. 14 (Mich. pi. 17), per Brian ; 6 Hen. VII. f. 9 
 (Mich.pl.4); loHen.VII.f. 2 7(Trin.pl. 13); 13 Hen. VII. f. 7 (Mich, 
 pi. 3); Bro. Abr. Eschete, pi. 18; Co. Lit. 240 a, 268 a, \>; 3 Inst. 
 19; 3 Rep. 2, 3, 35 a; 8 Rep. 42 b; Hale, P. C. Part I, ch. 23; 
 Hawk, P. C. Bk. 2, ch. 49, sec. 5 : Burgess v. Wheate, Eden, 177, 
 243. It will be noticed that none of these authorities, except 
 perhaps the writ in the Register, is older than the middle of the 
 fourteenth century. 
 
 ' 3 Rep. 35 a ; Co. Lit. 76 b. 
 
 M. 24 
 
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370 The Mystery of Seisin 
 
 until the tenancy is recontinued\" But at all events 
 of a right of action there was no wardship. On the 
 other hand, if the disseisor died without an heir the 
 lord got an escheat, if the disseisor died leaving an 
 infant heir the lord got a wardship, though in either 
 case his rights were defeasible by the disseisee. In 
 short, the lord must take his chance; it is no wrong to 
 him if his tenant be disseised ; he cannot prevent this 
 person or that from acquiring seisin, yet thus he may 
 be a great loser or a great gainer. The law about 
 seisin pays no regard to his interests. 
 
 There is another side to the picture we have here 
 drawn. He who is seised, though he has no title to 
 the seisin, can alienate the land.; he can make a feoff- 
 ment and he can make a will (for he who has land is 
 enabled to devise it by statute), and his heir shall 
 inherit, shall inherit from him, for he is a stock of 
 descent ; and there shall be dower and there shall be 
 curtesy, and the lord shall have an escheat and the 
 king a forfeiture, for such a one has land "to give and 
 to forfeit." This may make seisin look very much like 
 ownership, and in truth our old law seems this (and 
 has it ever been changed^?) that seisin does give 
 ownership good against all save those who have better 
 because older title. Nevertheless we err if we begin 
 to think of seisin as ownership or any modification of 
 ownership ; after all it is but possession. A termor 
 was not seised, but certainly he could make a feoff- 
 ment in fee and his feoffee would be seised. This 
 
 ' Fitz. Abr. Garde, pi. lo. 
 
 ^ See Asher v. Whitlock, L. R. i Q. B. i. Holmes, Common 
 Zmw, p. 244. 
 
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The Mystery of Seisin 37 1 
 
 seems to have puzzled Lord Mansfield', and puzzling 
 enough it is if we regard seisin itself as a proprietary- 
 right, for then the termor seems to convey to another 
 a right that he never had. But when it is remembered 
 that substantially seisin is possession, no more, no less, 
 then the old law becomes explicable. My butler has 
 not possession of my plate, he has but a charge or 
 custody of it ; fraudulently he sells it to a silversmith ; 
 the silversmith now has possession : so with the termor, 
 who has no seisin, but who by a wrongful act enables 
 another to acquire seisin. 
 
 But, it will be urged, the termor's feoffee (here is 
 the difficulty) acquires an estate in fee simple and no 
 less estate or interest. Certainly, and what of the 
 silversmith who buys of the fraudulent butler ? He 
 has possession, and in a certain sense he possesses as 
 owner ; he claims no limited interest, such as that of a 
 bailee, in the goods. How his rights would best be 
 described at the present day we need not discuss, but 
 it seems plausible to say that at least if an innocent 
 purchaser, he has ownership good against all save 
 those who have better because older title I Regarded 
 from this point of view the termor's tortious feoffment 
 is no anomaly. It is true that in our modern law there 
 may be nothing very analogous to the process whereby 
 an infirm title gained strength as it passed from man 
 
 ' I refer of course to Taylor v. Horde, i Burr. 60, a case which 
 profoundly dissatisfied the great conveyancers of the last .century, 
 and which has lately put Mr Challis to his Greek (^Real Property, 
 p. 329). Butler's note on this case (Co. Lit. 330 b) seems to me the 
 best modern account of seisin that we have. 
 
 ^ Holmes, Common Law, p. 241. 
 
 24 — 2 
 
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372 The Mystery of Seisin 
 
 to man, the ousted owner losing the right to enter 
 before he lost the right of action ; still it is conceivable 
 that in the interests of public peace law should, for 
 example, permit me to take my goods by force from 
 the thief himself, but not from one to whom the thief 
 has given or sold them, nor from the thief s executor. 
 Thus would my entry be tolled and I should be put to 
 my action \ 
 
 But this by the way, for the position of the non- 
 possessed owner is more interesting and less explicable 
 than that of the possessed non-owner. Now we seem 
 brought to this, that ownership, mere ownership, is 
 inalienable, intransmissible ; neither by act of the party 
 nor by act of the law will it pass from one man to 
 another. The true explanation of the foregoing rules 
 will I believe be found in no considerations of public 
 policy, no wide views of social needs, but in what I 
 shall venture to describe as a mental incapacity, an 
 inability to conceive that mere rights can be transferred 
 or can pass from person to person. Things can be 
 transferred ; that is obvious ; the transfer is visible to 
 the eye ; but how rights ? you have not your rights in 
 your hand or your pocket, nor can you put them into 
 the hand of another nor lead him into them and bid 
 
 ' Coke (Co. Lit. 245 b) says that "by the ancient law" the entry 
 of the disseisee was tolled not only by a descent cast, but by the 
 disseisor's feoffment followed by non-claim for year and day. There 
 was very similar law both in France and in Germany, as may be seen 
 at large in Laband, Die Vermogensrechtlichen Klagen and Heusler, 
 Die Gewere. I have never been able to find definite authority for 
 Coke's statement, but it looks to me very probable. It deprives the 
 descent cast of its isolated singularity, and fits in with the learning of 
 fines. 
 
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The Mystery of Seisin 373 
 
 him walk about within their metes and bounds. " But," 
 says the accomplished jurist, "this is plain nonsense; 
 when a gift is made of a corporeal thing, of a sword or 
 a hide of land, rights are transferred ; if at the same 
 time there is a change of possession, that is another 
 matter ; whether a gift can be made without such a 
 change of possession, the law of the land will decide ; 
 but every gift is a transfer of ownership, and owner- 
 ship is a right or bundle of rights ; if gift be possible, 
 transfer of rights is possible." That, I should reply, 
 doubtless is so in these analytic times ; but I may have 
 here and there a reader who can remember to have 
 experienced in his own person what I take to be the 
 history of the race, who can remember how it flashed 
 across him as a truth, new though obvious, that the 
 essence of a gift is a transfer of rights. You cannot 
 give what you have not got : — this seems clear ; but 
 put just the right accent on the words give and got, and 
 we have reverted to an old way of thinking. You 
 can't give a thing if you haven't got that thing, and 
 you haven't got that thing if some one else has got it. 
 A very large part of the history of Real Property Law 
 seems to me the history of the process whereby 
 Englishmen have thought themselves free of that 
 materialism which is natural to us all. 
 
 But it will be said to me that this would-be explana- 
 tion is untrue, or at best must take us back to a merely 
 hypothetical age of darkness, because from time im- 
 memorial there were rights which could be transferred 
 from man to man without any physical transfer of 
 things, namely, "the incorporeal hereditaments which 
 lay in grant and not in livery." In truth however the 
 treatment which these rights receive in our oldest 
 
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374 'r^^ Mystery of Seisin 
 
 books is the very stronghold of the doctrine that I am 
 propounding. They are transferable just because they 
 are regarded not as rights but as things, because one 
 can become not merely entitled to, but also seiged and 
 possessed of them, corporeally seised and possessed. 
 Seisin, it may be, cannot be delivered ; I cannot put 
 an advowson into your hand, nor can an advowson be 
 ploughed and reaped ; nevertheless the gift of the 
 advowson will be far from perfect until you have 
 presented a clerk who has been admitted to the church. 
 In your writ of right of advowson you shall count that 
 on the presentation of yourself or your ancestor a clerk 
 was admitted, nay more, that your clerk exploited the 
 church, took esplees thereof in tithes, oblations and 
 obventions to the value of so many shillings\ But 
 we may look at a few of these things incorporeal a 
 little more closely. 
 
 And first then of seignories, reversions, remainders. 
 These, it is said, lie in grant. But for all that the tenant 
 of the land must attorn to the grantee ; the attornment 
 is necessary to perfect the transfer of the right. Such 
 was the law in 1705^ Whence this necessity for an 
 attornment ? 
 
 It may be replied : — Here at all events is a feudal 
 
 ' Capiendo inde expleta ; this phrase conveys a sense of manifest 
 and successful achievement. When the possessor takes a crop from 
 his land, he achieves, exploits his seisin; his seisin is now explicit. 
 See Skeat, s.v. explicit, exploit. There is a great mass of information 
 in Ducange, s.v. expletum. Coke, 6 Rep. 58, gives almost the true 
 meaning, though his etymology is at fault; he derives the word from 
 expleo (instead of explico) and says that the grantee of a rent hath not 
 a perfect and explete or complete estate until he hath reaped the 
 esplees, scilicet the profit and commodity thereof. 
 
 " 4 & 5 Ann. c. 16, sec. 9. 
 
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The Mystery of Seisin 375 
 
 rule. Just as (before the beginning of clear history) 
 the tenant could not alienate the land without the 
 lord's consent, so in the reign of Queen Anne the lord 
 could not alienate the seignory without the tenant's 
 attornment. There was a personal bond between lord 
 and vassal ; the need of attornment is to start with the 
 need of the tenant's consent, though certainly in course 
 of time he could be compelled to give that consent. 
 
 Now it may not be denied that in this region feudal 
 influence was at work. To deny this one must con- 
 tradict Bracton. But the sufficiency of the explanation 
 should not be admitted until some text of English law 
 is produced which says that the tenant can as a general 
 rule refuse consent to an alienation. Bracton does say 
 that except in exceptional cases there can be no 
 transfer of homage unless the tenant consents ; on the 
 other hand he says that all other services can be 
 transferred and the tenant shall be attorned velit nolit^. 
 It is of course possible to regard this state of things as 
 transitional, to urge that in Bracton's day the tenant 
 had already lost a veto on alienation that he once had ; 
 but before we adopt this theory let us see how much 
 less ground it covers than the rules which have to be 
 explained. 
 
 (a) The doctrine of attornment holds good not only 
 of a seignory and of a reversion but of a remainder 
 also^; but between the remainderman and the tenant of 
 the particular estate there is no tenure, no feudal bond. 
 
 ((5) Much the same doctrine holds good when what 
 has to be conveyed is the land itself (immediate free- 
 
 ^ Bract, f. 81 b, 82. The writs for compelling attornment are the 
 Quid juris clamat and the Per quae servitia. 
 ^ Co. Lit. 309 a; Lit. sec. 569. 
 
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376 The Mystery of Seisin 
 
 hold) but that land is in lease for years. Here the 
 transfer can be made in one of two ways. There may 
 be a grant and then attornment will be necessary', or 
 there may be a feoffment. But if there is to be a 
 feoffment, either the termor must be a consenting party 
 or he must be out of possession ^ If the termor 
 chooses to sit upon the land and say " I will not go off 
 and I will not attorn myself," there can be no effectual 
 grant, no effectual feoffment ; recourse must be had to 
 a court of law. But surely it will not be said that in the 
 days of true feudalism, when, as we are told, the termor 
 was regarded much as his landlord's servant, he had a 
 legal right to prevent his landlord from selling the land .'' 
 {c) The doctrine of attornment holds good of rents 
 not incident to tenure ^ The terre-tenant will not hold 
 of the grantee of the rent, nevertheless he must attorn 
 if the grant is to have full efficacy. Indeed the learning 
 of rents as it is in Coke*, and even as it is at the pre- 
 sent day, seems to me very suggestive of an ancient 
 mode of thought. The rent is regarded as a thing, 
 and as a thing which has a certain corporeity (if I may 
 so speak) ; you may be seised, physically possessed of 
 it ; you have no actual seisin until you have coins, 
 tangible coins, in your hand. On getting this actual 
 seisin much depended ; in modern times a vote for 
 Parliament^ An attornment would give you a fictitious 
 
 ' Lit. sec. 567. 
 
 ^ Co. Lit. 48 b; Bettisworth' s Case, 2 Rep. 31, 32. 
 
 ^ Co. Lit. 311b. 
 
 ^ Brediman's Case, 6 Rep. 56 b. 
 
 ' Ormis Case, L. R., 8 C. P. 281 ; Hadfield^s Case, ibid. 306. 
 The last Reform Act (48 Vict. c. 3, sec. 4) has, one regrets to say, 
 made it improbable that we shall have in the future similar displays 
 of antique learning. 
 
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The Mystery of Seisin 377 
 
 " seisin in law " ; nothing but hard palpable cash would 
 give you seisin in fact. Such an incorporeal heredita- 
 ment as a rent can be given by man to man just 
 because it occasionally becomes corporeal under the 
 accidents of gold or silver ; this seems the old theory. 
 
 Now as to attornment, a valuable analogy lies very 
 near to our hands. Suppose that we shut Coke upon 
 Littleton and open Benjamin on Sales. Describing 
 what will be deemed an "actual receipt" of sold 
 goods within the meaning of the Statute of Frauds, 
 Mr Benjamin writes thus : — " When the goods, at the 
 time of the sale, are in the possession of a third person, 
 an actual receipt takes place when the vendor, the 
 purchaser, and the third person agree together that the 
 latter shall cease to hold the goods for the vendor and 
 shall hold them for the purchaser.... A 11 of the parties 
 must join in the agreement, for the agent of the vendor 
 cannot be converted into an agent for the vendee with- 
 out his own knowledge and consent \" This is familiar 
 law, and surely it explains much. Baron Parke used 
 a very happy phrase when he said that there is no 
 "actual receipt" by the buyer "until the bailee has 
 attorned, so to speak " to the buyer, a happy phrase 
 for it explained the obscure by the intelligible, the old 
 by the modern^ 
 
 Without transfer of a thing there is no transfer of 
 a right. 
 
 Starting with this in our minds, how, let us ask, 
 
 1 Benjamin, Sales, 2nd ed., p. 132. 
 
 ^ Farina v. Home, 16 M. & W. 119. I believe that it was 
 Parke, B. who first introduced the term " attornment " into the 
 discussion of cases concerning the sale of goods ; but in this I may 
 be wrong. 
 
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378 The Mystery of Seisin 
 
 can a reversioner alienate his rights when a tenant for 
 life is seised, how can a tenant in fee simple alienate 
 his rights when there is a termor on the land ? There 
 is but one answer. The person who has the thing in 
 his power must acknowledge that he holds for or under 
 the purchaser. If he does this, then we may say (as 
 we do say when construing the Statute of Frauds) that 
 the purchaser has " actually received " the thing in 
 question. It is I admit difficult to carry this or any 
 other theory through all the intricacies of our old land 
 law. The fact that in course of time there came to 
 be two legally recognized possessions, first the old- 
 fashioned possession or seisin which no termor can 
 have [possessio ad assisas), and then the new-fashioned 
 possession which a termor can have [possessio ad breve 
 de transgressione), complicates what, to start with, may 
 have been a simple notion \ But the clue is given us 
 in some words of Britton : — tenant in fee wants to 
 alienate his land, but there is a farmer in possession ; 
 until the farmer attorns there can be no conveyance, 
 car la seisine del alienour set continue touz juirs par le 
 fermer, qui use sa seisine en le noun le lessour^ ; the 
 seisin is held for the alienor until the farmer consents 
 to hold it for the alienee. So when the person on the 
 land is tenant in fee simple, here doubtless he is seised 
 on his own behalf, seised in demesne, but the overlord 
 also is seised, seised of a seignory, or, as the older 
 books put it, he holds the land in service {non in 
 dominico sed in servicid) ; he holds the land by the 
 
 ' I have framed my Latin phrases on the model of Savigny's 
 possessio ad interdicta. Seisin, we may say, is " assize-possession." 
 ^ Britton, vol. ii., p. 303. 
 
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The Mystery of Seisin 379 
 
 body of his tenant ; he can only transfer his rights if 
 he can transfer seisin of the seignory ; he transfers 
 seisin when the tenant admits that he is holding under 
 a new lord\ So with a rent which " issues out of the 
 land " ; we cannot make a rent issue out of land, or 
 turn the course of a rent already issuing, unless we 
 can get at the land ; if some one else has possession of 
 the land, it is he that has the power to start or to 
 divert the rent. This phrase "a rent issuing out of 
 land " would seem to us very wonderful and very 
 instructive, had we not heard it so often. What a 
 curious materialism it implies ! 
 
 Bracton's whole treatment of res incorporales shows 
 the same materialism, which is all the more striking 
 because it is expressed in Roman terms and the writer 
 intends to be very analytic and reasonable. Jura are 
 incorporeal, not to be seen or touched, therefore there 
 can be no delivery {traditio) of them. A gift of them, 
 if it is to be made at all, must be a gift without 
 delivery. But this is possible only by fiction of law. 
 The law will feign that the donee possesses so soon as 
 the gift is made and although he has not yet made use 
 of the transferred right. Only however when he has 
 actually used the right does his possessio cease to be 
 fictiva and become vera, and then and then only does 
 the transferred right become once more alienable^ 
 
 ^ I am not sure that it was ever technically correct to say that the 
 overlord is seised of the land ; but in thirteenth century cases, he 
 certainly has and holds the land, he has and holds it not in demesne, 
 but in service. See Br. f. 432, 433. I have seen many cases to this 
 effect; and I have seen nunquam aliquam seisinam habuit nee in 
 dominico nee in servieio. 
 
 ^ Bracton, f. 52 b. 
 
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380 The Mystery of Seisin 
 
 Of all these incorporeal things by far the most 
 important in Bracton's day and long afterwards was 
 the advowson in gross, and happily he twice over gives 
 us his learning as to its alienability with abundant 
 vouching of cases'. To be brief: — \{ A seised of an 
 advowson grants it to B, and then the church falls 
 vacant, B is entitled to present. Thus far have advow- 
 sons become detached from land. But if before a 
 vacancy B grants to C, and then the parson dies, who 
 shall present? Not C, nor B, but A. Not C, for 
 though B had a quasi-possession when he made the 
 grant he had no real possession, for he had never used 
 the transferred, or partially transferred, right ; he had 
 nothing to give ; he had nothing. Not B, for what- 
 ever inchoate right he had he has given away. No, as 
 before said, A shall present, for the only actual seisin 
 is with him. One has not really got an advowson until 
 one has presented a clerk and so exploited one's right. 
 
 We may take up the learning of advowsons some 
 centuries later. The following comes from a judgment 
 not unknown to fame, the judgment of Holt in Ashby 
 V. White''. He is illustrating the doctrine that want 
 of remedy and want of right are all one. "As if a 
 purchaser of an advowson in fee simple, before any 
 presentment, suffer an usurpation and six months to 
 pass without bringing his quare impedit he has lost his 
 right to the advowson, because he has lost his quare 
 impedit which was his only remedy ; for he could not 
 maintain a writ of right of advowson ; and although he 
 
 ' Bracton, f. 54, 55, 246. See Nichols, Britton, vol. 11., p. 185, 
 note f. 
 
 ' Ld. Raym. 938, 953. 
 
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The Mystery of Seisin 381 
 
 afterwards usurp and die and the advowson descend 
 to his heir, yet the heir cannot be remitted, but the 
 advowson is lost for ever without recovery." So, as 
 I understand, stood the law* before the statute 7 Ann. 
 c. 18. It comes to this, that if the grantee who has 
 never presented suffers a usurpation, and does not at 
 once use a special statutory remedy', his right, his 
 feeble right, has perished for ever. Writ of right he 
 can have none, for he cannot count on an actual seisin. 
 Very precarious indeed at Common Law was the right 
 of the grantee who had not yet acquired what could be 
 regarded as a physical corporeal possession of a thing. 
 Indeed when we say that these rights lay in grant 
 we use a phrase technically correct, but very likely to 
 mislead a modern reader. 
 
 Space is failing or I would speak of franchises, for 
 even to negative franchises, such as the right to be 
 quit of toll, does Bracton apply the notion of seisin 
 or possession ; and the more the history of the in- 
 corporeal hereditaments is explored, the plainer will it 
 be that according to ancient ideas they cannot be 
 effectually passed from person to person by written 
 words : there is seisin of them, possession of them, no 
 complete conveyance of them without a transfer of 
 possession, which, when it is not real must be supplied 
 by fiction. But now if we put together all the old 
 rules to which reference has here been made (and I will 
 ask my readers to fill with their learning the many gaps 
 in this brief argument), does it not seem that these 
 "very odd notions" of our ancestors, which Sir James 
 
 ' Stat. Westm. the Second (13 Edw. 1), c. 5. The law is clearly 
 stated by Blackstone, vol. in., p. 243. 
 
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382 The Mystery of Seisin 
 
 Mansfield ascribed to "particular causes," were in the 
 main due to one general cause ? They point to a time 
 when things were transferable and rights were not. 
 Obviously things are transferable, but how rights ? 
 
 And here let us remember the memorable fact that 
 the chose in action became assignable but the other 
 day. The inalienability of the benefit of a contract, 
 like the inalienability of the rights of the disseised 
 owner, has been set down to that useful, hard-worked 
 "particular cause," the prodigious jealousy of mainten- 
 ance. The explanation has not stood examination in 
 the one case^ I doubt it will stand examination in the 
 other. According to old classifications the benefit of a 
 contract and the right to recover land by litigation, 
 stand very near each other. The landowner whose 
 estate has been " turned to a right " (a significant 
 phrase) has a thing in action, a thing in action real. 
 There is a contrast more ancient than that between 
 jus in rem and jus in personam, namely, that between 
 right and thing. Of maintenance there is, I believe, 
 no word in Bracton's book, but that there can be no 
 donatio without traditio is for him a rule so obvious, so 
 natural, that it needs no explanation, though it may be 
 amply illustrated by cases on the rolls. What the 
 thirteenth century learned of Roman law may have 
 hardened and sharpened the rule, but it seems in- 
 grained in the innermost structure of our law. , 
 
 I am far from saying that within the few centuries 
 
 covered by our English books it has ever been strictly 
 
 inconceivable that a right should be transferred without 
 
 some transfer of a thing, or without some physical fact 
 
 ^ Pollock, Principles of Contract, 4th ed., Appendix, Note G, 
 
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The Mystery of Seisin 383 
 
 which could be pictured as the use of a transferred 
 incorporeal thing. Should it even be proved that the 
 Anglo-Saxon charter or " book " passed ownership 
 without any transfer of possession, this will indeed be 
 a remarkable fact, but far from decisive, particularly if 
 the proof consist of royal grants. The king in council 
 may have been able to do many marvellous feats not 
 to be done by common men, and we know that ages 
 before the year 1875 the king could assign his chose in 
 action. But old impotencies of mind give rise to rules 
 which perdure long after they have ceased to be the 
 only conceivable rules, and then new justifications have 
 to be found for the wisdom of the ancients, here 
 feudalism, there a dread of maintenance, and there 
 again a hatred of simony. So long as the rules are 
 unrepealed this rationalizing process must continue ; 
 judges and text-writers find themselves compelled to 
 work these archaisms into the system of practical in- 
 telligible law. Only when the rules are repealed, when 
 we can put them all together and look at them from a 
 little distance, do they begin to tell their true history. 
 I have here set down what seems to me the main 
 theme of that history. For this purpose it has been 
 necessary to speak very briefly and superficially of 
 many different topics, about every one of which we 
 have a vast store of detailed and intricate information. 
 Before any theory such as that here ventured can 
 demand acceptance, it must be stringently tested at 
 every point and other systems of law besides the 
 English should be considered. But it seemed worth 
 while to draw notice to many old rules of law which 
 
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384 The Mystery of Seisin 
 
 we do not usually connect together, and to suggest 
 that they help to explain each other and are in the 
 main the outcome of one general caused 
 
 ^ There is one rule of our present Common Law which, were it 
 very old, would make much against what I have said, the rule, 
 namely, that the ownership of movables can be transferred by mere 
 agreement, by bargain and sale without delivery. I have not for- 
 gotten this, but it seemed impossible to discuss in a paper already 
 too miscellaneous a question which has divided two masters of the 
 Year Books. Serjeant Manning has maintained that the rule is quite 
 modern. Lord Blackburn, on the other hand, has found it in the 
 books of Edward the Fourth. He was not concerned, however, to 
 trace it any further, and it seems to me that the law of an earlier time 
 required a change of possession on the one side or the other, delivery 
 or part-delivery of the goods, payment or part-payment of the price. 
 Perhaps at some future time I may be allowed to state what I have 
 been able to find about this matter. Since this article was in 
 print examples (a.d. 1305) of pleadings referring to the seisin of 
 chattels have been brought to my notice by Mr G. H. Blakesley : see 
 Registrum Palatinum Dunelmense (ed. Hardy), vol. iv., pp. 45, 49, 
 
 63, 73- 
 
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THE DEACON AND THE JEWESS; OR, 
 APOSTASY AT COMMON LAW\ 
 
 In the year 1222, Archbishop Stephen Langton 
 held at Oxford a provincial council, and of this council 
 one result was that a deacon was burnt, burnt because 
 he had turned Jew for the love of a Jewess. 
 
 I propose here to set in order the scattered evidence 
 that we have for this story. This, so far as I am aware, 
 has not yet been done, and it seems worth doing. The 
 story became famous, for the passage in which Bracton 
 made mention of it became the main, almost the only, 
 authority for holding that, without help from any 
 statute, English law can burn a heretic or, at least, 
 an apostate. We have indeed no warrant for saying 
 that from the death of this deacon until the death of 
 Sautre in 1400 (whether Sautre was burnt under the 
 statute of that year or under the common law, must 
 not here be asked), no one in England was burnt for 
 heresy, but we may say with some confidence that 
 during this long period, near two hundred years, if 
 English orthodoxy had a victim, there is no known 
 record of his fate^ 
 
 > Law Quarterly Review, April, 1886. 
 
 ^ Report of Ecclesiastical Courts Commission, 1883, Historical 
 Appendix, p. 52, a paper proceeding from the present Bishop of 
 Chester. 
 
 M. 25 
 
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386 The Deacon and the Jewess ; 
 
 Now for just so much of the tale as is told above 
 we have testimony ample in quantity and excellent in 
 quality. But I have purposely used a loose phrase : — 
 the apostate's death was a " result " of the council. If 
 we strive to be more precise and ask by what authority 
 he was committed to the flames, who passed, who 
 executed the sentence, we have before us a problem 
 difficult but interesting. Not only in course of time 
 did the solid tragic fact attract to itself some floating 
 waifs of legend and miracle, but even our best witnesses 
 have not been so careful of their words as doubtless 
 they would have been had they known that they were 
 writing for an ignorant nineteenth century. We must 
 collate their testimonies, mark what they say, also what 
 they do not say. So doing we shall be drawn into 
 noticing another story about a man and a woman who 
 were immured (whatever "immured" may mean), and 
 this story also deserves being brought to light, for 
 it is very curious. 
 
 That the council was held is quite certain. The 
 scene and time we can fix exactly. The scene was 
 Oxford, or, to be more particular, the conventual church 
 of Osney". The day is variously described, the day 
 on which one reads in the gospel, " I am the good 
 Shepherd," the day on which one sings in the introit, 
 " The earth is full of the mercy of the Lord " ; but all 
 descriptions come to this, it was the 1 7th of April, aiad 
 the Second Sunday after Easter, in the year 1222. 
 The canons which the council published we have'. 
 Naturally enough, being general ordinances, they say 
 
 ^ Annales Monastid (Osney), vol. iv., p. 63. 
 * Wilkins, Concilia, vol. i., p. 585. 
 
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or, Apostasy at Common Law 387 
 
 nothing of the deacon ; but there are two of them 
 which claim brief attention. 
 
 It was ordained that no beneficed clerk, or clerk in 
 holy orders, should take any part whatever in the 
 judicial shedding of bloods This, even if it stood by 
 itself, would assure us that no sentence of death was 
 pronounced by the council. It may be that this canon 
 was habitually disobeyed, or obeyed only according to 
 its very letter. At this time, and for many years 
 afterwards, the regular judges in our King's Court 
 (to say nothing of abbots and even bishops sent out as 
 justices in eyre) were for the more part ecclesiastics, 
 and the judicial bench was often a step to the episcopal 
 throne. But this seems to have been a scandal to 
 churchmen of the straiter sort, and it would be quite 
 one thing for this or that ordained clerk to hold pleas 
 of the Crown, leaving to some lay associate the actual 
 uttering of the fatal suspendatur, quite another for an 
 ecclesiastical council to break while in the very act of 
 publishing a law for the church I 
 
 Also the council had something to say about the 
 mingling of Jews with Christians, something which 
 suggests, what indeed seems the truth, that at this 
 time the Jews in England, despite the exactions of 
 their royal protector, and despite occasional outbursts 
 of popular fury, were a prosperous thriving race. Jews 
 are not to have Christian servants, it being contrary to 
 reason that the sons of the free woman should serve 
 
 1 Cap. 9. 
 
 ^ See Grossteste's protest against the appointment of the Abbot 
 of Ramsey as a justice in eyre in 1236; Letters of Grossteste (ed. 
 Luard), p. 105. 
 
 25—2 
 
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388 The Deacon and the Jewess ; 
 
 the sons of the bond'. Again, there being unfortunately 
 no sufficiently visible distinction between Jews and 
 Christians, there have been mixed marriages or less 
 permanent unions ; for the better prevention whereof, 
 it is ordained, that every Jew shall wear on the front 
 of his dress tablets or patches of cloth four inches long 
 by two inches wide, of some colour other than that 
 of the rest of his garment^ We might guess that the 
 council was moved to this decree by the then recent 
 and shameful crime of the apostate deacon. But there 
 is no need for any such supposition, for in this and in 
 most of its ordinances the Oxford Council was but 
 endorsing and re-enforcing the acts of a still more 
 august assembly, the Fourth Lateran Council held by 
 Pope Innocent the Third in the year 12 15. 
 
 The Lateran Council had prohibited the clergy from 
 taking part in judgment of bloody also it had ordained 
 that Jews and Saracens should wear some distinctive 
 garb'', lest under cover of a mistake there should be an 
 unholy union of those whom God had put asunder. 
 But this was but bye-work ; the suppression of flagrant 
 heresy had been the main matter in hand. Of heresy 
 England indeed had known little, almost nothing. It 
 is true that in 1 166 some heretics, Publicani or the like, 
 had been condemned by an ecclesiastical council (this 
 council also was held at Oxford), had been handed 
 over to the secular power, and then by the king's 
 
 1 Cap. 39. 
 
 ^ Cap. 40. It seems that this regulation was enforced by statute 
 in 1275. See Flores Historiaruni ("Matthew of Westminster") for 
 that year. In Statutes of the Realm (vol. i., p. 221) this appears as 
 a statute of uncertain date. 
 
 ' Cap. 18. ^ Cap. 68. 
 
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or, Apostasy at Common Law 389 
 
 command whipt, branded, and exiled ; some of them, 
 it seems, perished very miserably of cold and hunger'. 
 But even these were foreigners, Germans, and the 
 writer who tells us most about them boasts that though 
 Britain was disgraced by the birth of Pelagius, England, 
 since it had become England, had been unpolluted by 
 false doctrine. He boasts also, and apparently with 
 truth, that well-timed severity had been successful. 
 Only one other case is recorded, and of this we know 
 next to nothing. In 12 10 an Albigensian was burnt in 
 London ; we are told just this and no more^ It must 
 not surprise us therefore if English law had no well- 
 settled procedure for cases of heresy ; there had been 
 no heretics. But of course it was otherwise elsewhere. 
 When the Lateran Council met the Albigensian war 
 had been raging for some years, and it had been a 
 serious question whether a considerable tract of France 
 would not be permanently lost to the Catholic Church. 
 So one great object of the council was to impress upon 
 all princes and potentates the sacred duty of extirpating 
 heretics. A definite method of dealing with them 
 was ordained^ They were to be condemned by the 
 ecclesiastical powers in the presence of the secular 
 powers or their bailiffs [saecularibus potestatibus praesen- 
 tibus aut eorum baillivis) and delivered to due punish- 
 
 ^ The original authorities seem to be Rad. de Diceto (ed. Stubbs), 
 vol. I., p. 318; William of Newburgh (ed. Howlett), vol. i., p. 131 ; 
 Mapes de Nugis Curialium (Camden Society), p. 63 ; Ralph of 
 Coggeshall {tA. Stubbs), p. 122. 
 
 " Will. Newburgh, 1. c. 
 
 ^ Liber de Antiquis Legibus (Camden Society), p. 3. As to these 
 two cases see the paper by the Bishop of Chester referred to above. 
 
 * Cap. 3. This is Decretal. Gregor. lib. 5, tit. 7, cap. 13. 
 
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390 The Deacon and the Jewess ; 
 
 ment, clerks being first deprived of their orders. Also 
 it was decreed that if the temporal lord, when required 
 and admonished by the church, neglected to purge his 
 land of heresy, he should be excommunicated by the 
 metropolitan and the other bishops of the province. 
 If then for the space of a year he should still be 
 contumacious, that was to be signified to the Pope, 
 who would thereupon discharge his subjects from their 
 allegiance. It was from taking part in such legislation 
 as this that the English bishops had but lately returned 
 when they met at Oxford. The council at Oxford, 
 having recited and republished the Lateran canons, 
 can have had little doubt as to how it ought to deal 
 with a deacon who had turned Jew. 
 
 It will hardly be a digression, and indeed may lead 
 us to the right point of view, if we notice that this 
 same Lateran Council made (or if the word made be 
 objectionable, then let us say caused) a great change 
 in English criminal law. It abolished the ordeal, or 
 rather it made the ordeal impossible by forbidding the 
 clergy to take part in the ceremony' ; no more re- 
 mained for the council of the English king (the king 
 himself was yet a boy) than to find some substitute for 
 a procedure which was no longer practicable^ We 
 may respect the motives which urged Blackstone to 
 protest that no change in English law could be made 
 by a body of prelates assembled at Rome' ; but we 
 shall scarcely understand the history of the time unless 
 
 1 Cap. 1 8. 
 
 ^ See the orders issued to the justices in eyre; Foedera, vol. i., 
 p. 154. Among the justices were five bishops and one abbot. 
 ^ Comment., vol. iv., pp. 344-5. 
 
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or, Apostasy at Common Laiv 391 
 
 we understand that the exclusive power of the church 
 to rule things spiritual, — and the ordeal, the judgment 
 of God, was a thing spiritual, — was unquestioned. It 
 may be difficult now to grasp the old theory of Church 
 and State, the theory of the two swords ; a distinction 
 between things spiritual and things temporal may seem 
 to us vain and impossible; still we must reverence 
 facts, and the theories of a time are among its most 
 important facts. Our own doctrine of sovereignty, our 
 modern definitions of law, are out of place if we apply 
 them to the middle ages. They will bring us but to 
 some such unprofitable conclusion as that there were 
 no sovereigns, no political communities, no law, nothing 
 but "dormant anarchy." 
 
 Though it may delay us from our story, there is yet 
 one question which should be asked and answered 
 before we can fully comprehend the evidence that is 
 to come before us. Who at Oxford in the year 1222 
 was the natural and proper representative of temporal 
 power, who was the manus laicalis ? Doubtless the 
 sheriff of Oxfordshire. Now it happened that the 
 sheriff of Oxfordshire was one of the most notable 
 men in England; more than king in England ("plus- 
 quam rex in Anglia") some said'. He was Fawkes 
 of Breaut^, just at the full height of his power, a man 
 not unlikely to act in a high-handed imperious way 
 without much regard for forms and precedents, a man 
 who very likely was already plotting revolt and civil 
 war, a man somewhat given to disseising and otherwise 
 pillaging the clergy, and therefore, it may be, not un- 
 willing to do the church a service if that service would 
 1 Ann. Monast, (Tewkesbury), vol. i., p. 64. 
 
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392 The Deacon and the Jewess ; 
 
 cost him nothing. He was soon to find that the church 
 could be a terrible enemy, that of all his foes Langton 
 was the most resolute. 
 
 These things premised, we may call the witnesses, 
 and first of all Bracton, not that his testimony is the 
 earliest but because it is perhaps the best and certainly 
 the best known. A lawyer writing for lawyers, he 
 would be likely to see the case in its legal bearings 
 and to speak of it carefully. We cannot assign any 
 very precise date to his evidence, and he may well 
 have given it between thirty and forty years after the 
 event. Still it is from round about the year 1222, the 
 year of the Oxford Council, that he collected the great 
 mass of his case law. That was the great time when 
 there were great judges whose judgments were worthy 
 of record. Of their successors, his own contemporaries, 
 he seems for some reason or another to have thought 
 but meanly. It was to the examination of old judg- 
 rnents, as he himself expressly says, that he had given 
 his mind\ He is speaking then, if not of his own 
 time, yet of a time that he has studied. He has been 
 telling us that a clerk convicted of crime is to be de- 
 graded by the Court Christian^ He is to undergo no 
 further punishment, degradation is punishment enough, 
 "unless indeed he is convicted of apostasy, for then 
 he is to be first degraded and then burnt by the lay 
 power [per manuTn laicalem)^ as happened at the 
 Oxford Council holden by Stephen Archbishop of 
 Canterbury of happy memory, touching a deacon who 
 apostatised for a Jewess, and who, when he had been 
 degraded by the bishop, was at once {statim) delivered 
 ' Bracton, f. i. ^ Bracton, f. 123 b. 
 
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or, Apostasy at Common Law 393 
 
 to the fire by the lay power." Two things we remark. 
 In the first place there is no talk of any sentence of 
 death being pronounced by any court, temporal or 
 spiritual ; the miscreant was burnt at once, on the spot, 
 so soon as he has been degraded : there is no talk 
 even of any royal writ. Secondly, the case is good 
 law ; it is a precedent to be followed when occasion 
 shall require. 
 
 But Bracton does not stand alone. If he did, we 
 should perhaps have some cause for doubting his 
 testimony. It was an age very fertile of chroniclers 
 and annalists, and there are some dozen books in which 
 we may hope to find a trustworthy and early, if not 
 quite contemporary, account of an event which took 
 place in 1222, an event which, though neither very mar- 
 vellous nor of first-rate importance, was still picturesque 
 and unprecedented. Some of these books are silent. 
 The silence most to be regretted is that of Roger of 
 Wendover. We would gladly have had an account 
 from one so careful and so well informed. But he is 
 taken up with, more momentous matters, the loss of 
 Damietta and a serious riot in London, not suppressed 
 without the aid of Fawkes and his soldiery. Beyond 
 this he tells of nothing but terrible tempests. And, 
 indeed, the weather this year was abominably bad ; 
 about this all our authorities are agreed. It is the 
 only fact that the annalist of Margan in Glamorgan 
 found worthy of remark. The annals of Burton, of 
 Worcester, and of Bermondsey do not even mention 
 the council ; those of Winchester and Tewkesbury tell 
 us that the council was held, but tell us no more. The 
 annals of Osney, to which we look hopefully, say merely 
 
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394 ^'^^ Deacon and the Jewess ; 
 
 that the council was held, and held at Osney. But all 
 this silence cannot, I believe, be reckoned as negative 
 evidence. The monastic annalist, working with no 
 definite plan, with no consistent measure for the 
 greatness of events, jotted down what might interest 
 his house or had struck his fancy, making sometimes 
 what seems to us a very capricious selection of facts. 
 He could pass by the fate of the perverted deacon, but 
 he could also pass by very many things which, tried 
 by any test, were much better worth recording. 
 
 But from the Cistercian house of Waverley in 
 Surrey we have this': — "In this council an apostate 
 deacon who had married (duxerai) a Jewess was de- 
 graded and afterwards burnt. Also a countryman {^rus- 
 ticus) who had crucified himself was immured for ever." 
 A somewhat longer version comes from Dunstable^ 
 and it seems to be the version of one who likely enough 
 was an eye-witness, Prior Richard Morins, who was 
 describing events as they happened year by year^ 
 He had certainly been at the Lateran Council^ and 
 I suppose that it was his duty to be at the Oxford 
 Council also. He must have been a careful man of 
 business, for these Dunstable Annals are a long detailed 
 record of litigation and legal transactions described in 
 technical legal language. What he says is this: — "In 
 this council there was condemned to the flames, after 
 his degradation, a deacon who for the love of a Jewess 
 had been circumcised ; and he was burnt with fire 
 
 ' Ann. Monast., vol. ii., p. 296. Dr Luard (Preface, p. xxxi) 
 regards this as a contemporary record of events. 
 ^ Ann. Monast., vol. iii., p. 76. 
 ^ Dr Luard's Preface, p. x. * p. 44. 
 
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or, Apostasy at Common Law 395 
 
 outside the town by the king's bailiffs who were present 
 on the spot (ibidem praesentes). There also another 
 deacon was degraded for theft. Also a woman who 
 gave herself out to be Saint Mary and a youth who 
 had given himself out to be Christ and had pierced his 
 own hands, side and feet, were immured at Banbury." 
 The prior certainly says that the pervert was con- 
 demned to the flames in (not by) the council. Could 
 we now draw his attention to these words he would, 
 I think, say (after a grumble about hypercriticism) 
 that of course the council did not in so many words 
 pronounce a sentence of death, but would add that it 
 did what was for practical purposes the same thing, it 
 convicted the man of apostasy and handed him over 
 to the secular power ; he might add, too, that no 
 one for whom he wrote would have imagined that a 
 judicium sanguinis was uttered by this assembly of 
 ecclesiastics. Of any temporal court he says nothing, 
 and nothing of any royal writ, but the king's bailiffs 
 were present on the spot, as required by the Lateran 
 Council, and they burned the convict. 
 
 The account which comes to us from the Abbey of 
 Coggeshall in Essex is yet fuller \ It is contained in 
 a very valuable chronicle, and in all probability was 
 written within some five years after the event. Arch- 
 bishop Stephen held a council at Oxford, and there 
 " degraded an apostate deacon, who for the love of 
 a Jewess had circumcised himself. When he had 
 been degraded he was burnt by the servants of the 
 lord Fawkes. And there was brought thither into the 
 council an unbelieving youth along with two women, 
 ' Ralph of Coggeshall, p. 190. 
 
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396 The Deacon and the Jewess ; 
 
 whom the archdeacon of the district accused of the 
 most criminal unbelief, namely that the youth would 
 not enter a church nor be present at the blessed sacra- 
 ments, nor obey the injunctions of the Catholic Father, 
 but had suffered himself to be crucified, and still 
 bearing in his body the marks of the wounds had been 
 pleased to have himself called Jesus by the aforesaid 
 women. And one of the women, an old woman, was 
 accused of having long been given to incantations and 
 having by her magic arts brought the aforesaid youth 
 to this height of madness. So both being convicted 
 of this gross crime, were condemned to be imprisoned 
 between two walls until they died [jussi sunt inter duos 
 muros incarcerari quousque deficerent). But the other 
 woman, who was the youth's sister, was let go free, for 
 she had revealed the impious deed." We notice the 
 appearance of Fawkes of Breaute, or rather of his 
 underlings, remembering however that the ministri 
 domini Falconis would also be the ballivi domini Regis 
 mentioned by the Prior of Dunstable. We notice also 
 that here there is no sentence of death, no royal writ. 
 
 Of about equal value and of about even date must 
 be the account which, according to Dr Stubbs, comes 
 from some nameless canon of Barnwell, the account 
 which is preserved in the Memoriale of Walter of 
 Coventry'. "A priest and a deacon were there de- 
 graded inside the church before the council by the lord 
 of Canterbury, the priest for homicide, the deacon for 
 sacrilege and theft. But another deacon had sinned 
 enormously ; he had renounced the Christian faith ; 
 
 ' Historical Collections of Walter of Coventry. Preface by 
 Dr Stubbs, vol. 11., p. ix. 
 
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or, Apostasy at Common Law 397 
 
 blaspheming and apostatising, he had caused himself 
 to be circumcised in imitation of the Jewish rite. He 
 was degraded by the lord of Canterbury outside the 
 church and before the people. Relinquished by the 
 clergy, he was as a layman and captured apostate 
 delivered over to be condemned by the judgment of 
 the lay court, and being at once [staiim) delivered to 
 the flames he died a miserable death. In degrading 
 the priest and the deacons, when the lord of Canterbury 
 had stripped off the chasuble, or stole, or whatever it 
 might be, by lifting it with the end of his pastoral staff, 
 he made use of these words, ' We deprive you of 
 authority ' [Exauioramus te). There was brought into 
 the council a layman who had allowed himself to be 
 crucified, and the scarred traces of the wounds might 
 be seen in his hands and feet and his pierced side and 
 his head. There was brought also a woman who, 
 rejecting her own name, had caused herself to be called 
 Mary Mother of Christ. She had given out that she 
 could celebrate mass, and this was manifested by some 
 proofs which were found, for she had made a chalice 
 and patten of wax for the purpose. On these two the 
 council inflicted condign punishment, that enclosed 
 within stone walls {muris lapideis inclust) they should 
 there end life." One peculiarity of this life-like account 
 is that it says nothing about the Jewess. But we have 
 also to note the mention of the lay court, for of this 
 we have hitherto heard nothing. The deacon was 
 delivered over to be condemned by its judgment. 
 These are the important words : "velut laicus et apo- 
 stata captus traditur judicio curiae laicalis condem- 
 nandus." Nevertheless we do not read that he was 
 
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398 The Deacon and the Jewess ; 
 
 in fact condemned by or brought before any secular 
 tribunal ; on the contrary, he was forthwith committed 
 to the flames. 
 
 I beHeve that I have now stated what may be 
 called the first-rate evidence, and that it is far more than 
 sufficient to establish the chief facts. It will not escape 
 the reader's notice that all these early accounts of the 
 matter are very sober, strikingly sober when the nature 
 of the story and its subsequent fate are considered. 
 We come to witnesses of a somewhat less trustworthy 
 kind. And first there is Matthew Paris, who died in 
 1259. Roger of Wendover, as already said, does not 
 even mention the Oxford Council. When Paris was 
 absorbing Wendover's work into his own Chronica 
 Majora, he inserted a notice of the Council and of the 
 deacon's death. A more elaborate tale he set forth in 
 his Historia Minor or Historia Anglorum, and to this 
 we will turn first since there he cites his authority, 
 and this authority an eye-witness, one Master John of 
 Basingstoke, Archdeacon of London'. Of any such 
 Archdeacon of London nothing is said elsewhere, but 
 a John of Basingstoke was Archdeacon of Leicester^ 
 Paris seemingly knew him well, and doubtless he is 
 the person meant. He was a friend of Simon de 
 Montfort and died in 1252. Paris, on the occasion of 
 his death, speaks of him as a very learned man'. He 
 had been to Greece and had learnt Greek, had learnt 
 it from a young Greek girl of whose wonderful ac- 
 
 ^ Historia Anglorum (ed. Madden), vol. 11., p. 254. 
 ^ See lists of Archdeacons of London and of Leicester in Hardy's 
 Le Neve. 
 
 ^ Chron. Ma;., vol. v., p. 284. 
 
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or, Apostasy at Common Law 399 
 
 complishments he had strange things to tell ; she could 
 foresee eclipses, pestilences and even earthquakes, and 
 had taught the archdeacon all that he knew. Perhaps 
 while seated at her feet the archdeacon not only learnt 
 but forgot ; perhaps as a traveller he acquired a habit 
 of telling good stories. At any rate the story that he 
 told to Paris was this: — "An English deacon loved 
 a Jewess with unlawful love, and ardently desired her 
 embraces. ' I will do what you ask ' said she ' if you 
 will turn apostate, be circumcised and hold fast the 
 Jewish faith.' When he had done what she bade 
 him he gained her unlawful love. But this could not 
 long be concealed, and was reported to Stephen of 
 Canterbury. Before him the deacon was accused ; the 
 evidence was consistent and weighty ; he was convicted 
 and then confessed all these matters, and that he had 
 taken open part in a sacrifice which the Jews made 
 of a crucified boy. And when it was seen that the 
 deacon was circumcised, and that no argument would 
 bring him to his senses, he solemnly apostatised before 
 the archbishop and the assembled prelates in this 
 manner : — a cross with the Crucified was brought 
 before him and he defiled the cross \ saying, ' I 
 renounce the new-fangled law and the comments of 
 Jesus the false prophet,' and he reviled and slandered 
 Mary the mother of Jesus, and made a charge against 
 her not to be repeated. Thereupon the archbishop, 
 weeping bitterly at hearing such blasphemies, deprived 
 him of his orders. And when he had been cast out of 
 
 ^ Et minxit super crucem. 
 
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400 The Deacon and the Jewess; 
 
 the church, Fawkes, who was ever swift to shed blood, 
 at once carried him off and swore, ' By the throat of 
 God ! I will cut the throat that uttered such words,' 
 and dragged him away to a secret spot and cut off his 
 head. The poor wretch was born at Coventry. But 
 the Jewess managed to escape, which grieved Fawkes, 
 who said, ' I am sorry that this fellow goes to hell 
 alone.' " 
 
 Eye-witness and archdeacon though Master John 
 of Basingstoke may have been, we cannot believe all 
 that he said. In the first place, he will have the 
 deacon's head cut off, while all our best witnesses agree 
 about the burning. In the second place, either the 
 charge of crucifying a boy is just the mere " common 
 form" charge against the Jews (the Jews were always 
 crucifying boys, as every one knew, and were now 
 and again slaughtered for it), or else the archdeacon 
 has muddled up the history of the deacon with that of 
 the labourer who was immured for crucifying himself 
 Nor does it seem likely that the assembled prelates 
 gave the apostate an opportunity for manifesting his 
 change of faith in a fashion at once very solemn and 
 very gross. But what is said of Fawkes of Breaut^ does 
 deserve consideration. Fawkes when this story was 
 told was long since banished and dead, and it may well 
 be that he had become a bugbear, a mythical monster 
 to whom, under Satan, mischief of all sorts might 
 properly be ascribed. But what mischief, what evil 
 doing had there been } Why should a perfectly lawful 
 execution be converted into a hurried and secret act of 
 this cursing and bloodthirsty enemy of mankind, this 
 
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or, Apostasy at Common Law 401 
 
 Fawkes of Breaute, "ever swift to shed blood," with 
 imprecations about the throat of God ? Certainly the 
 impression left on the archdeacon's mind seems to have 
 been that of a deed which, though perhaps lawful, was 
 indecently hasty. 
 
 What Paris says in his Chronica Majora^ is briefer, 
 but it has a new marvel for us, and shows that we are 
 already on treacherous ground. He introduces us to 
 a hermaphrodite. A man has been apprehended who 
 has in his hands, feet and side the five wounds of the 
 crucifixion ; he and an accomplice, a person utriusque 
 sexus, scilicet, Ermofroditus, confess their offences and 
 are punished by the judgment of the Church. " Like- 
 wise also a certain apostate, who being Christian had 
 turned Jew, a deacon, he too was judicially punished 
 {^judicialiter punitus) ; and him Fawkes at once snatched 
 away and caused to be hanged [quern Falco statim 
 arreptum suspendi fecit)." The poor deacon who has 
 been already burnt and beheaded is now hanged ; this 
 we may pass by, nor will we discuss the question how 
 the old woman who called herself St Mary became a 
 hermaphrodite, but we again notice that the slaying 
 of the apostate is due to Fawkes, and seems a lawless 
 or at least irregular act. Doubtless the Abbey in 
 which Paris wrote was just the place in which stories 
 discreditable to Fawkes would be readily believed and 
 invented, and Paris himself seems to have cherished 
 a bitter hatred for "the great enemy and despoiler 
 of St Alban'sl" But again we have to ask, whether 
 and why there was anything reprehensible in putting 
 
 ' Vol. III., p. 71. 
 
 ^ Dr Luard's Preface to vol. ni., p. xii. 
 
 M. 36 
 
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402 The Deacon and the Jewess; 
 
 to death this degraded clerk, and, if not, why that evil 
 principle, Fawkes of Breaute, should be invoked to 
 account for what was perfectly natural and right ? 
 
 Another ornate version is given by Thomas Wykes, 
 who, it is believed, wrote near the end of the thirteenth 
 century and in the monastery of Osney, the scene of 
 the councils " In this council there was presented 
 a deacon who, some time ago, had for the love of a 
 Jewess rejected Christianity, apostatised, and been 
 circumcised according to the Jewish rite. Being con- 
 victed of this he was first degraded, then condemned 
 by a secular judgment (saeculari judicio condemnatus) 
 and burnt by fire. It was said that this same apostate, 
 in contempt of the Redeemer and of the Catholic faith, 
 had eveij dared to throw away iji an ignoble place {in 
 loco ignobili) the Lord's body which had been stolen 
 from a church. A Jew revealed this, and in corro- 
 boration of the Christian faith the Lord's body was 
 found unpolluted, uncorrupted, in a fair vessel, pre- 
 pared for it, as one may well believe, by angel hands. 
 And there was brought into the same council a country 
 fellow [rusticus) who had come to such a pitch of 
 madness that, to the despite of the Crucified One, he 
 had crucified himself, asserting that he was the Son of 
 God and the Redeemer of the world. He was im- 
 mured by the judgment of the Council, and shut up in 
 prison he ended his life, fed on water and hard bread." 
 This is, I think, the first and only account which 
 states that the deacon was condemned by a lay court, 
 . and I believe that it comes from too late a time to be 
 trusted ; the legend about the consecrated wafer shows 
 ^ Ann. Monast., vol. iv., p. 62. See Dr Luard's Preface, pp. x-xv. 
 
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or, Apostasy at Common Law 403 
 
 that the story was already being improved by trans- 
 mission. 
 
 There is not much more to be said. Later writers 
 repeat with more or less accuracy what we have already 
 read. Just one new ornament is added, and a pretty 
 ornament too. Having learnt how the rusticus (such 
 is the stereotyped description of the miserable man, 
 and it well may mean that he was a villein) crucified 
 himself, and how the deacon assisted at the crucifixion 
 of a Christian boy, we may read in the pages of 
 Holinshed and elsewhere how the council crucified 
 a hermaphrodite, a version of the tale which good 
 Protestants must think very proper and probable \ 
 
 Such being the evidence, were I to venture a guess 
 as to what really happened it would be this: — No one 
 in England doubted for one moment that this deacon 
 ought to be burnt, except, it may be, the deacon him- 
 self and his fellow Jews. It is not necessary here to 
 assume that had his offence been mere heresy, his fate 
 would have been the same, though I believe that of 
 this there can be little doubt. But his crime was 
 enormous, he had piled sin on sin. A deacon of the 
 Christian Church he had turned Jew, turned Jew for 
 love and for the love of a Jewess. Excommunication 
 would have awaited the king, interdict the nation, if 
 mere heresy had gone unpunished, and England had 
 lately had some sad experience of interdicts. But in 
 such a case as this no ecclesiastical threat would be 
 
 1 Holinshed (ed. 1807), vol. n., p. 251. But the confusion is 
 older; see Knighton (Twysden's Scriptores), p. 2429 : it must, I 
 think, have originated in the clerical blunder of someone who wrote 
 crucifixus instead of immuratus. 
 
 26 — 2 
 
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404 The Deacon and the Jewess; 
 
 needed ; every one would agree that this self-made 
 Jew must be burnt, that his death was demanded by- 
 all laws human and divine. It was the duty of the 
 council to degrade him, to demand that he should be 
 punished, to see that he was punished ; but the council 
 could not pronounce upon him any sentence beyond 
 that of degradation. He was degraded then, not 
 inside the church like the manslayer and the thief, but 
 outside the church, before the people, and he was then 
 handed over to the sheriff or his bailiffs. He was at 
 once burnt ; most of our witnesses bring out this fact 
 that he was burnt at once and without any further 
 formality. Possibly it was intended that there should 
 be some further formality, some sentence pronounced 
 by a lay tribunal ; one of our best witnesses, the canon 
 of Barnwell, seems to say as much, and the story about 
 the indecorous haste of Fawkes points the same way. 
 Possibly, then, Fawkes or his subordinates did act 
 with unexpected promptitude ; Fawkes, unless he is 
 maligned,, was not much given to waiting for orders. 
 One writer at the end of the century says that the man 
 was condemned by the lay court. I take this to prove 
 that by that time, when the relation between Church 
 and State had undergone some change, it was thought 
 that there ought to be, assumed that there must have 
 been some sentence by a lay tribunal, at least some 
 writ from the king. But whatever was expected and 
 omitted was but a bare formality, the registration by 
 the king's court of a foregone conclusion. By an 
 informality the deacon gained a speedier release from 
 a painful world. Any notion that he would have been 
 saved had he been brought before the king's justices 
 
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or, Apostasy at Common Law 405 
 
 we may dismiss as idle. Those justices, almost to a 
 man, would have been ecclesiastics, and among laymen 
 he would assuredly have fared no better. There was 
 no statute, there may perhaps have been no precedent 
 to the point ; such a case is not foreseen in advance, 
 and when it happens it is of course unprecedented ; but 
 that a deacon who turns Jew for the love of a Jewess 
 shall be burnt, needed no proof whatever. Bracton, as 
 I think, knew that there had been no judgment of any 
 lay court ("qui cum esset per episcopum degradatus, 
 statim fuit igni traditus per manum laicalem"), and he 
 fully approved of what had been done and so far 
 generalized the case as to state for law that an apostate 
 clerk (a layman would have been in no better plight, 
 but Bracton, as it happens, is discussing clerical privi- 
 leges) is to be delivered to the lay power and burnt. 
 
 The fate of the man and woman who were immured, 
 fanatics, lunatics, impostors, enthusiasts, or whatever 
 they were, is really quite as remarkable as the fate of 
 the deacon. The notion that for breach of monastic 
 vows persons were sometimes bricked up in walls was 
 once current and may still be entertained by some who 
 take their Marmion too seriously. Scott indeed sanc- 
 tioned it not only by verse but by a solemn prose note. 
 Very possibly the main foundation of this notion is 
 some version of the story that has here been before 
 us, for I believe that this is almost all that is to be 
 found about immuration in any English records or 
 chronicles. We see plainly (and this might, I take it, 
 be fully proved from foreign books) that our witnesses 
 do not mean that two persons were suffocated in brick 
 or stone. They were imprisoned for life and fed on 
 
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4o6 The Deacon and the Jewess 
 
 bread and water. Doubtless the imprisonment was 
 very close and strait, otherwise we should not have 
 this same immuratus from writer after writer when 
 incarceratus and imprisonatus lay ready to hand, and 
 one writer says that they were enclosed between two 
 walls, not between four ; but still they were fed, though 
 water and hard bread were their fare. But what most 
 deserves attention is that they were sentenced to 
 imprisonment, life-long imprisonment, by an ecclesi- 
 astical council, and that the sentence was carried out. 
 What is more, they were lay folk. The sentence here 
 was wo judicium sanguinis, and by pronouncing it the 
 council broke no canon of the Church. But what of 
 the common law ? At common law could the eccle- 
 siastical court send a man to prison ? This seems to 
 me a vain question ; every question about what was 
 "the common law" is vain that does not specify some 
 date. But suppose that the year 1222 be mentioned, 
 then apparently our answer must be this : — In that 
 year two persons were sent to imprisonment for life by 
 the judgment of an ecclesiastical council, and, in the 
 absence of evidence to the contrary, the natural pre- 
 sumption is that they were imprisoned lawfully. 
 
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THE BEATITUDE OF SEISIN\ 
 
 I. 
 
 The subject of this essay is an episode in the 
 history of English law, which has hardly received all 
 the attention that it deserves. It is in itself curious 
 and interesting, and a full understanding of it might 
 lead to the understanding of some other passages in 
 our legal history, which are not very intelligible. It 
 concerns the protection which our law of the middle 
 ages cast over seisin, and more especially the protec- 
 tion of seisin against proprietary right. 
 
 Now a doctrine of possession and a system of 
 possessory remedies seem to find their most critical 
 test in the question — How, and in what circumstances, 
 is possession protected against ownership ? It may 
 well be, as some think, that to protect possession 
 against ownership has not been the object of those by 
 whom possessory remedies have been instituted and 
 developed. In protecting possession they may have 
 had chiefly in their view possession by those who have 
 right ; they may have wished to facilitate proof in 
 favour of owners ; and it may have been but an 
 accident in their schemes, though an inevitable acci- 
 dent, that they were forced to maintain the sanctity of 
 possession even against ownership. But though this 
 
 ' Law Quarterly Review, January, 1888. 
 
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4o8 The Beatitude of Seisin 
 
 may be so, still it is hard to determine whether, or in 
 what sense, a remedy is "possessory," until we have 
 seen it conceded or denied in cases in which it would 
 act as a limit to proprietary rights. When the contest 
 is merely between a possessor and one who claims no 
 right in the thing, then it is often possible to dispose 
 of the question by saying that "possession is evidence 
 of ownership," or again, to contend that possession 
 engenders title of a sort — title good against all who 
 have no better, because older, title. When however 
 we see the possessor protected against one who ad- 
 mittedly is the owner, or against one who is ready and 
 willing to prove his ownership, then we know for 
 certain that possession itself is protected by law, and 
 protected for its own sake. By this phrase, "for its 
 own sake," I mean not to stir any question about the 
 ultimate reason for protecting possession, but only to 
 point out that when we see an owner succumbing to a 
 possessor, forced to deliver up what is his own, or 
 forced to pay damages for having touched what is his 
 own, then there can be no doubt that the law really 
 does protect possession, and does not merely regard it 
 as affording evidence of title, or as giving a title good 
 against those who have no better. Thus it becomes 
 an important inquiry as regards any system of law, 
 whether and how the rights of owners are limited by 
 the rights of possessors. To such an inquiry let us 
 subject our medieval law. 
 
 Looking then at the state of affairs at the end of 
 the middle ages, — the accession of Henry VII will be 
 a good moment to fix, and we can turn to Littleton's 
 Tenures as to a very recent book, — we may be in- 
 
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The Beatitude of Seisin 409 
 
 clined to think for one moment that the common law 
 (as distinct from statute law of no great antiquity) 
 never protects either the old-fashioned seisin or the 
 more modern "possession" against ownership, against 
 the entry and even the forcible entry of "him that right 
 hath," The statutes to which reference has just been 
 made are of course the Statutes of Forcible Entry, of 
 which the earliest is no older than 1 38 1 ', and of which 
 for the present we will take no further notice. It has 
 been the general opinion that nothing but those statutes 
 stood in the way of a forcible entry on the part of one 
 who had a right to enter. But then stress must be 
 laid on the phrase " a right to enter " : it at once 
 reminds us that a person might well be owner of land 
 and as such be entitled to be seised and possessed of 
 it, and yet might have no right whatever to enter upon 
 it. The methods whereby this state of things might 
 be brought about were those which we are wont to 
 group under the two heads of Descent Cast and 
 Discontinuance. To put the matter very briefly : — If 
 a disseisor (or the alienee of a disseisor) died seised 
 and the ousted owner had not by continual claim kept 
 alive his right to enter, then he could not enter upon 
 the heir of him who had thus died seised; "the descent 
 cast had tolled his entry," his entry was no longer 
 congeable. Then, again, if an abbot seised in right ol 
 his monastery, a husband seised in right of his wife, or 
 a tenant in tail made a feoffment in fee simple, this was 
 a discontinuance, and the successor, wife, issue, might 
 not enter on the feoffee. In these scattered cases, 
 which we need not at this moment define more 
 1 5 Ric. II. Stat. I. c. 7. 
 
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410 The Beatitude of Seisin 
 
 accurately, seisin was protected against ownership; and 
 very effectually protected ; the true owner, the person 
 who of all the world had the best right to be possessing 
 the land, might not set foot upon it. 
 
 We can hardly think of these rules otherwise than 
 as rules which exist for the protection of seisin, — not 
 indeed of every seisin, or even of every seisin that has 
 colour of title, but of seisin acquired under certain 
 particular titles. But the scope of these rules is so 
 narrow and (as it must seem to us) so capriciously 
 defined, that we have great difficulty in conceiving 
 them as forming part of a rational coherent theory of 
 possession ; we are tempted to pronounce them quite 
 unintelligible, and therefore presumably "feudal." The 
 explanation which I shall here hazard is that they 
 are the last relics, somewhat casually preserved, of a 
 coherent theory of possession, of an extremely rigorous 
 prohibition of self-help, of a system of possessory 
 remedies which was once a simple and effective system, 
 but which fell to pieces in the course of the fourteenth 
 century. The main outline of this historical explana- 
 tion is suggested by a passage in Coke upon Littleton'; 
 but to fill up some part of that outline seems a reason- 
 able purpose ; for really the treatment of seisin in our 
 oldest common law must be understood if ever we are 
 to use the vast store of valuable knowledge that lies 
 buried in the Plea Rolls and the Year Books. If we 
 were free to write history out of our own heads, it 
 would be a plausible doctrine that gradually and 
 steadily the right of a dispossessed owner to right 
 himself, to take what is his own, is curtailed by law ; 
 
 1 Co. Lit. 237. 
 
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The Beatitude of Seisin 411 
 
 that in the law of the later middle ages, the law of 
 Littleton's time, we may see the first tentative and 
 clumsy advances towards a protection of possession 
 against ownership. But such a doctrine would be 
 quite untrue ; the sphere allowed to self-help by the 
 law of the twelfth century is almost infinitely narrower 
 than that allowed by the common law of the fifteenth. 
 This seems to me an important fact, and I shall here 
 attempt to collect some proofs of it. 
 
 We have every reason to believe that our pos- 
 sessory actions, the three assizes of novel disseisin, 
 mort d'ancestor and darrein presentment, were not 
 developed out of ancient folk-law but were of positive 
 institution, that they were established by ordinance 
 early in the reign of Henry the Second. Their very 
 name " assizes," the express testimony of GlanvilP and 
 Bracton^ to say nothing of later tradition^ the equally 
 clear testimony of the Norman books as to the origin 
 of the Norman assizes^, all point the same way, and it 
 is even possible that we have "the text of the law on 
 which the assize of mort d'ancestor was founded^" We 
 may add to this that a definitely possessory remedy 
 does not seem native to the law of our race ; that when 
 it appears in England or in Germany or in France, it 
 
 ^ Glanvill, xiii. c. i. 
 
 2 Bract, f. 164 b. 
 
 ' Mirror, c. 2, § 25 ; 2 Inst. 24. 
 
 * Brunner, Entstehung der Schwurgerichte, pp. 297-303. 
 
 ' Stubbs, Const. Hist., § 145 ; Assize of Northampton, c. 4. 
 Madox {Hist. Exch., vol. 11., p. 549) gives from a roll of 14 Hen. II. 
 an entry to the effect that Ralf son of Huilard was amerced for a 
 disseisin done against the king's assize. The assize of novel disseisin 
 seems therefore to have been in force as early as 1168. 
 
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4 1 2 The Beatitude of Seisin 
 
 bears witness to the influence of alien jurisprudence, 
 of Roman law working either directly, or through the 
 medium of the Canon Law. At the same time we 
 must not think of the Norman or the English assizes as 
 copies of the interdicts or of the actio spolii. It would 
 be easy for us to exaggerate the amount of Roman law 
 that can have been known in the court of Henry the 
 Second. Much more had become known by Bracton's 
 time ; but Bracton had great difficulty in finding the 
 assizes in the Roman books'. They were not pedantries, 
 but lively, effective institutions, well suited to the 
 Normandy and the England of Henry's day, and they 
 struck deep root and flourished. A century after 
 Henry's death the Novel Disseisin was still "festinum 
 remedium," the most summary proceeding known to 
 the Chancery''. 
 
 If we ask for the motive of this new institution, we 
 ought perhaps to distinguish between motives which 
 are and those which are not avowed. Henry's main 
 object may have been to strike a heavy blow at 
 
 ' Item est "petitoria haereditatis actio" [this means the writ of 
 right], et competit illis, quibus jus merum descendit ab antecessoribus 
 sicut haeredibus propinquioribus. "Possessoria"' vero "haereditatis 
 petitio" est de possessione propria, et quae dicitur "actio unde vi," 
 per quam restituitur spoliate, et dici poterit "assisa novae dissei- 
 sinae.'' Item dicitur "possessoria petitio" de possessione aliena, 
 sicut alicujus antecessoris de aliquo tenemento de quo antecessor 
 obiit seisitus ut de feodo, quae dicitur "actio quorum bonorum," sive 
 "assisa mortis antecessoris." ... Est etiam interdictum sive actio 
 "quorum bonorum," quae non oritur ex maleficio sed ex quasi 
 contractu. Bract, f. 103 b, 104. These are learned after-thoughts. 
 We do not suppose that the appeal of homicide was modelled on an 
 "actio legis Aquiliae de hominibus per feloniam occisis.'' 
 
 = Stat. West. II. c. 25. 
 
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The Beatitude of Seisin 413 
 
 feudalism, to starve the feudal courts, to weaken the 
 tie between man and lord, to strengthen the tie between 
 subject and king, to make every possessor feel that 
 he owed the blessedness of possession to a royal 
 ordinance, to the action of a royal court. Also it is 
 not to be disguised that he made money out of his 
 assizes \ But he could not have succeeded had there 
 not been a strong feeling that a possessory action was 
 a right and good thing, that the peace ought to be 
 maintained, that proof should be easier, that the 
 dilatory processes of the old actions were working 
 injustice. The avowed motive for the new institution 
 was, at least according to Norman tradition, the pro- 
 tection of the weak against the mighty, the poor 
 against the rich ; along with this we have the homely 
 thought, that the plough must not be disturbed, that 
 he who sows should also reap I Perhaps at the base 
 of the new remedies there was no one clearly thought- 
 out principle, but rather several different ideas, which, 
 though for a while blent and harmonious, would in 
 course of time become separate and discordant. 
 
 Of all the possessory assizes the Novel Disseisin 
 is by far the most interesting ; and since everything 
 depends upon the words of its formula, that formula, 
 the question which the recognitors were summoned to 
 answer, must here be set forth : — 
 
 Si B injuste et sine judicio disseisivit A de libero 
 tenemento suo in X post [ultimam transfretationem 
 
 1 Bigelow, History of Procedure, p. 187. 
 
 2 Brunner, pp. 297-300, 328-330; see the Siatuta et Consuetudines 
 published by Warnkonig at the end of the second vokime of his 
 Franz'dsische Staats- und Rechtsgeschichte, especially p. 11. 
 
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414 The Beatitude of Seisin 
 
 domini Regis in Normanniam — or other the time of 
 hmitation]. 
 
 Glanvill speaks but very briefly of this assize, and 
 gives us no information as to the precise meaning of 
 the terms used in its formula \ Again, Palgrave's 
 Rotuli Curiae Regis give us but little help. We may 
 indeed see that in Richard's reign and John's the 
 new remedy had become very popular ; it was doing a 
 great work. But just because it was working well, the 
 records of its working are uninstructive. In case after 
 case there is no pleading at all, and the jurors answer 
 the question put to them with almost monosyllabic 
 brevity — " disseisivit eum " — " non disseisivit eum " ; 
 they well understand what is meant and do not pray 
 the aid of the justices. During Henry the Third's 
 reign special pleas (exceptiones) become not very un- 
 common, and special verdicts become still commoner. 
 The ideas answering to the terms "injuste," "dis- 
 seisivit," "libero tenemento" are being developed and 
 defined, and it is becoming rather rash for laymen, 
 over whose heads an attaint is pending, to swear that 
 B has unjustly disseised A of his free tenement. Then 
 from the middle of the thirteenth century we have 
 Bracton's book with an elaborate doctrine about the 
 scope of the assize. 
 
 Before we turn to that account it will be well to 
 remember how summary an action this Novel Disseisin 
 was, how sharp was the contrast between it and other 
 actions^ To begin with, " personal service " (to use a 
 modern term) was unnecessary ; to attach the defen- 
 dant's bailiff was enough ; there could be no essoin ; 
 * Glanv. XIII. 32-9. ^ Compare 2 Inst. 411; 8 Rep. 50. 
 
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The Beatitude of Seisin 415 
 
 there could be no vouching to warranty of any one not 
 named in the writ; the assize could be taken by de- 
 fault; no pleading to issue was necessary; the question 
 for the recognitors was defined in the writ. Lastly, 
 this was the only action in which one could recover 
 both land and damages. It is not, in Bracton's view, 
 a real action ; it is a personal action founded on tort^ 
 
 Now in order that we may understand the spirit of 
 this assize as administered in Bracton's day, we had 
 better at once put the extreme case, which is also the 
 simplest case : — A is the true owner, or very tenant in 
 fee simple, of land and is seised of it ; he lives on it 
 and cultivates it himself; there comes one B who has 
 no right whatever ; he casts A out and keeps him out, 
 by force and arms. When, we must ask, does A cease 
 to be seised and when does B begin to be seised ? 
 Doubtless in one sense or for one purpose, A is dis- 
 seised so soon as he is put off the land ; he can at once 
 complain to a court of law that B has disseised him. 
 Indeed to found such a complaint no actual ouster was 
 necessary ; had he repulsed B he might still have 
 complained of a disseisin. The assize serves the pur- 
 pose of an interdict for retaining, as well as that of an 
 interdict for recovering possession ; had B but entered 
 with an intent to assume possession this would have 
 been disseisin enough. In many cases the mere 
 troubling of possession is a sufficient disseisin, if the 
 person seised choose to complain of it as such^ But 
 even when A has been extruded from the land, B is 
 not at once seised (at least as regards A), that is to 
 say, he is not protected by the assize (at least as 
 
 ' Bract, f. 104, 164 b. ^ Bract, f. i6i b, 216 b. 
 
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4i6 The Beatitude of Seisin 
 
 against A)\ \i within a certain limited time A returns 
 and ejects B, B will have no ground of complaint. 
 Bracton sometimes expresses this principle in a 
 romanesque form, derived from what is now held to 
 be a misinterpretation of a famous sentence in the 
 Digest'; one can retain possession animo solo. The 
 ejected A so soon as he has been de facto ejected has 
 ceased to possess corpore, but he has not ceased to 
 possess animo ; he has lost possessio naturalis, he has 
 not lost possessio civilis. When however we come to 
 ask what this really means, we find that the talk about 
 a man retaining seisin animo solo — apart from any 
 objection about the misuse of Roman terms — is some- 
 what misleading. Really there seems to be a set of 
 hard and fast rules about the matter. A must turn B 
 out within four days ; otherwise B will have a seisin 
 protected by the assize. Such is the case if A was 
 actually on the land and was himself cast out. If 
 however he was away from the land when the disseisin 
 took place, then a longer time will be allowed him. In 
 the first place, he will not be disseised until the act of 
 disseisin is brought to his knowledge. In the second 
 place, he will then have a reasonable time within which 
 to come to the land, and after that he will have his 
 four days. The "reasonable" time is in several cases 
 determined by the parallel rules about essoins. Thus 
 the man who is in Gascony or on a pilgrimage to 
 Compostella has forty days, two floods and an ebb, 
 fifteen days and then the four days. Bracton, if I 
 
 ' Dig. de diversis reguHs juris (50. 17), 153. Ut igitur nulla 
 possessio acquiri nisi animo et corpore potest, ita nulla amittitur, 
 nisi in qua utrumque in contrarium actum est. See Bract, f. 38b, 39. 
 
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The Beatitude of Seisin 417 
 
 understand him rightly, seems to think that for a man 
 in England fifteen days would always be reasonable, 
 but says that at the present time this rule is not 
 observed. The four days he tells us are allowed a 
 man for the purpose of collecting friends and arms\ 
 Fleta' and Britton' repeat, though not very clearly, 
 this curious doctrine ; four days seems still the fixed 
 time within which a person who has himself been cast 
 out of the land may lawfully enter upon and eject his 
 ejector. 
 
 Mr Nichols in his fine edition of Britton has sup- 
 plied a gloss from a Cambridge MS., which there is 
 some reason for attributing to John of Longueville, a 
 justice of Edward the Second's time\ The first words 
 of it are very interesting: — "Where the disseisin is 
 done in the presence of the disseisee, the disseisor 
 must be ejected within five days ; because the law of 
 ancient time granted that the disseisee should go one 
 day to the east, the second day to the west, the third 
 day to the south, and the fourth day to the north, to 
 seek succour of his friends all the country round." 
 This same MS. contains a Bracton as well as a Britton, 
 and in the margin of the Bracton I have found a Latin 
 note, to the following effect: — "A being at London is 
 disseised of his free tenement in York, for his family is 
 ejected ; if it be asked within how long a time he may 
 lawfully re-eject his ejector by his own force, I am safe 
 in saying (^dico secure), within fourteen days, or fifteen ; 
 for in five days a messenger may come from York to 
 London to give him notice ; then A himself can go. 
 
 1 Bract, f. 163. ^ Fleta, p. 216. 
 
 ^ Brit. vol. I. p. 294. ^ ibid. 
 
 M. 27 
 
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4i8 The Beatitude of Seisin 
 
 thither in other five days, and four days being spent in 
 obtaining the aid of friends, he can re-eject the ejector 
 on the fifth. And so wheresoever he be, by computing 
 the days reasonably necessary for coming and going 
 (the allowance being more or less liberal according to 
 the discretion of the justices) and four days for getting 
 the help of friends, one can decide whether time has 
 run against him or no\" It would seem then that in 
 the opinion of some lawyer of the fourteenth century 
 this rule about the four days was still law. We shall 
 have some difficulty in reconciling this with the testi- 
 mony of the Year Books ; but we know how legal 
 texts are haunted by the ghosts of dead doctrines. 
 
 If a somewhat close attention is paid to Bracton's 
 words, we shall find that a period of four days is 
 mentioned more than once in connexion with the 
 acquisition of seisin ; some attention is necessary, - 
 because, as it seems to me, he was inclined to speak 
 vaguely of it and to rationalize it away. Thus if A, 
 who has been ejected, die without having purchased a 
 writ, his heir will not have the mort d'ancestor against 
 the ejector, unless A die within four days after the 
 ejectment^ If he die within the four days then he 
 "dies seised" within the meaning of the writ of mort 
 d'ancestor^ Again, a case is put in which I enfeoff 
 you to the intent that you marry my daughter ; you 
 marry some one else ; I may eject you, but must do so 
 infra triduum vel quartum diem, vel aliquantulum 
 ulterius, sed cum causa. Seemingly this means that I 
 must enter within four days, but that a longer time will 
 
 ^ MS. Dd. vii. 6, at f. 34 d of the Bracton. 
 
 2 Bract, f. 218 b. " Bract, f. 262. 
 
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The Beatitude of Seisin 419 
 
 be allowed me if there be cause, if e.g. I am not on the 
 spot\ Then, again, Bracton considers personal liberty 
 and personal villeinage as the subjects of a sort of 
 possession or seisin. A runaway serf must be captured 
 infra tertium vel quartum diem, otherwise he will be 
 in possessione libertatis, will be statu liber, and the lord 
 will be put to his action ^ This term of four days must 
 be carefully distinguished from the term of year and 
 day, by dwelling for which in a privileged place a 
 villein may gain the right of liberty. It will take him 
 a year to gain a right to his freedom ; but in four days 
 he may get possession, legally protected possession, 
 of it. 
 
 A term of four days seems therefore the time 
 during which one who has ousted the owner must de 
 facto hold the land in order that he may have a seisin 
 of it, legally protected against the owner. On the 
 other hand, if one comes to the land by good title, no 
 lapse of time is necessary ; the feoffee is seised so soon 
 as the feoffor has delivered seisin. But even within 
 the region of conveyance, we in one case meet with a 
 requirement of a four days' seisin. If a man is going 
 to enter religion and to endow the religious house with 
 his land, he must deliver seisin per tres dies vel quatuor 
 before he becomes professed I Bracton speaks rather 
 casually about this point, and it would be rash to lay 
 much stress upon what he says; but it deserves remark 
 that we here come across something not unlike the 
 " sessio triduana " of German medieval law. 
 
 In certain cases, German law of Bracton's time 
 
 1 Bract, f. 23. ' Bract, f. 6 b. 
 
 ^ Bract, f. 27 b. See also Y. B., 20 & 21 Edward I. pp. 8, 82. 
 
 27 — 2 
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420 The Beatitude of Seisin 
 
 required of a man that he should remain in a very 
 actual and obvious possession of land — should steadily 
 sit upon the land — for three days and three nights. In 
 what cases and to produce what legal results this was 
 required, have been controverted questions. At one 
 time it was maintained that the purchaser of land would, 
 not have acquired a legally protected possession, until 
 he had held the land for the three days\ Recent 
 writers have come to a different opinion. The com- 
 monest of all the " common assurances " of Germany 
 was the "Auflassung," a proceeding closely akin to our 
 own Fines and Recoveries. It took the form of a 
 fictitious action between seller and buyer, in which the 
 land was adjudged to the latter. Having been put 
 into possession, it seems to have been required of him 
 that he should abide on the land three days and three 
 nights. The object however of this requirement, 
 according to modern authorities, was not the acquisi- 
 tion of a legally protected seisin, but rather the pre- 
 clusion of any claim on the part of the seller or of any 
 one else who was present in court when the Auflassung 
 was made^ The origin of this period of three days, it 
 is said, was this: — In old times a Ding ("a judicial 
 session," I suppose we must say, unless we prefer "a 
 moot ") lasted three days, and the person who acquired 
 land by a judgment was not safe until the Ding was 
 over, until court and suitors were dispersed". So the 
 English suitor must await his adversary four days in 
 
 ' Albrecht, Gewere, pp. 75-78. 
 
 ^ Laband, Vermogensrechtliche Klagen, pp. 236-244; Heusler, 
 Gewere, pp. 167-172. 
 
 ° Sohm, Altdeutsche Reichs- und Gerichtsverfassung, p. 365. 
 
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The Beatitude of Seisin 42 1 
 
 court. I know not whether the rule that we find in 
 
 Bracton that a disseisor may be ejected infra quartum 
 
 diem has any direct connexion with the German rule ; 
 
 very possibly not, for I believe that in Germany the 
 
 disseisee would have been allowed at least a year and 
 
 day for the re-ejectment of his disseisor. But Bracton's 
 
 rule has all the appearance of being very ancient. We 
 
 may perhaps detect its origin in yet older law. In the 
 
 Lex Salica it makes a great difference to the man who 
 
 is following the trail of stolen cattle, whether he comes 
 
 upon them before or after three nights have elapsed. 
 
 On this depends, what is all important in ancient law, 
 
 the burden, or rather the benefit of the proof. The 
 
 idea at the base of this distinction seems to be that 
 
 after three nights a theft is no longer flagrant ; the 
 
 malefactor will not be caught in the act. It is not 
 
 impossible that in the fudicia Civitatis Londoniae, the 
 
 statutes of the London peace-guild, which seemingly 
 
 belong to the reign of Athelstan, we may find a trace 
 
 of the same idea. He whose cattle have strayed must 
 
 announce the loss to his neighbours " infra tres noctes," 
 
 otherwise the guild will not make good the loss^ So 
 
 in the law of Bracton's day a disseisin ceases to be 
 
 flagrant "infra quartum diem." A curious confirmation 
 
 of this rule, and of the fact that before the end of the 
 
 thirteenth century it was no longer observed, occurs in 
 
 The Mirror. The writer, who is a conservative and 
 
 an antiquary, complains that " force holds in disseisins 
 
 after the third day of peaceable seisin." This, he 
 
 says, is an abuse, "forasmuch as he is not worthy 
 
 ^ L. Sal. 37. Essays in A.-S. Law, p. 210. 
 
 " iflthelst. VI. 8, §§ 7, 8. Essays in A.-S. Law, p. 206. 
 
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422 The Beatitude of Seisin 
 
 of the law's help who contemns judgement and uses 
 forced" 
 
 But be the origin of the rule about the four days 
 what it may, this allowance of a certain time for re- 
 ejectment becomes of considerable importance. That 
 there should be some such allowance, more or less 
 precisely defined, is of course, according to our modern 
 ideas, very natural, especially if there is to be a posses- 
 sorium so strict that it will protect even a vicious 
 possession against the self-help of the owner. The 
 disseisor who has forcibly turned the owner out, or 
 who has come upon the land during the owner's 
 absence, cannot be protected directly he is the only 
 person on the land, at all events he cannot be pro- 
 tected against the owner. "A mere trespasser," says 
 modern authority, " cannot, by the very act of trespass, 
 immediately and without acquiescence, give himself 
 what the law understands by possession against the 
 person whom he ejects, and drive him to produce his 
 title, if he can without delay reinstate himself in pos- 
 session I" It was held in the case just cited that a 
 trespasser who had been occupying a house for eleven 
 days had not acquired "what the law understands 
 by possession." A trespasser, it is said, "does not 
 gain possession until there has been something like 
 acquiescence in the physical fact of his occupation on 
 the part of the rightful owner ^" The writer who says 
 this thinks also that until there has been something 
 like acquiescence on the part of the rightful owner, the 
 
 ' Mirror, " Abuses of the Common Law," No. 4. 
 
 ^ Browne v. Dawson (1840), 12 A. & E. 624, 629; 10 L. J., Q. B. 7. 
 
 " Pollock, Torts, p. 312. 
 
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The Beatitude of Seisin 423 
 
 trespasser who is on the land will have no possession 
 legally protected even against outsiders, supervening 
 trespassers. This, for anything that I know, may be 
 the modern law. If so, any one who now wishes to 
 make a theory of possession has an easier task than 
 that which was set before Bracton; for clearly it was 
 law in his day that in the very moment of the eject- 
 ment the wrongful ejector gained a seisin protected 
 against persons in generaP. To account for this out 
 of the theoretic materials ready to his hand was 
 difficult. He had to hold that a man may be seised 
 as regards some, not seised as regards others, and to 
 speak of the disseisor obtaining a naturalis possessio 
 which is protected against those who have no right, 
 before he acquires the civilis possessio which is pro- 
 tected even against those who have right. 
 
 However, the main point which needs attention is 
 this, that when once the short period of four days (or 
 it may be a little longer) has elapsed, the disseisor has 
 acquired a seisin which is protected against all men. 
 If ejected even by the rightful owner, he will have the 
 assize and he will be reinstated in his possession. If 
 we are to use the terms of later law, we must say that 
 the disseisee's entry is already tolled. There is no 
 need for any descent cast, there is no need for any 
 alienation by the disseisor to a third person, there is 
 no need for any such lapse of time as can have (at 
 least to our minds) a prescriptive effect : all that is 
 needful is that the disseisor shall have really obtained 
 possession of the land, and that he has done so is 
 sufficiently manifested if he has remained undisturbed 
 ^ Bract, f. 209 b. 
 
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424 TM Beatitude of Seisin 
 
 for four days, the disseisee being in the neighbourhood 
 and cognizant of the disseisin. 
 
 But what a most rigorous possessorium have we 
 here! It protects even a "vicious" possession. \{ A, 
 having been cast out by B, lets four days elapse, and 
 then has recourse to self-help, B will bring the assize 
 against him, and it will be useless for A to except that 
 B obtained his possession by force, and by force used 
 against him, A. This extreme rigour is so remarkable 
 and yet has so seldom been remarked, that were not 
 Bracton's text very clear I should doubt whether I had 
 understood it; but I think that if others will read the 
 whole book on the Novel Disseisin they will come to 
 the conclusion that has here been stated. It is neces- 
 sary to read the whole book, because Bracton has a 
 way of speaking about time which is very apt to lead 
 modern readers astray. He constantly speaks as 
 though lapse of time were necessary in order to give the 
 disseisor a seisin protected against the true owner: — 
 he must have time on his side, a long time, a long 
 interval, a long and peaceable seisin; and again, the 
 true owner loses the right of self-help when he has 
 ceased to have the mind to possess, when he has dis- 
 simulated the injury, when he has acquiesced. The 
 truth that such words as "long" and "short" are very 
 vague words will be forcibly brought home to us when 
 we discover that by " a long time " in this context 
 Bracton means four days. 
 
 Distinct from the case of the disseisor is that of the 
 intruder, of one who enters on a vacant possession, on 
 a possession, for example, left vacant by the death of a 
 tenant for life. He may be ejected antequam habuerit 
 
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The Beatitude of Seisin 425 
 
 longum tempus et pacificum; but then this longum 
 tempus is to our minds not very long; it is but year 
 and day — at least such is one opinion\ Britton remarks 
 that an intruder ejected by the true heir within year 
 and day cannot recover his possession. To this the 
 Cambridge glossator objects, "because it seemeth to 
 me that an intruder should not be in a worse condition 
 than a disseisor would be""; a remark which shows 
 once more that, in his opinion, a disseisor would gain 
 protection in less than a year. Probably the explana- 
 tion for this seeming favour shown to a disseisor as 
 contrasted with an intruder, is that {albeit a disseisin 
 is a much more serious injury than an intrusion) the 
 person who is really entitled to be in possession is 
 much more likely to get speedy notice of a disseisin 
 than of an intrusion; he may well not know that a 
 right to enter has accrued to him until the intruder has 
 been upon the land for some months. 
 
 Bracton of course has no doctrine about discon- 
 tinuances or descents cast. He has no need of any, 
 because he has a comprehensive doctrine of possession. 
 Even the disseisor himself in a very short time, at least 
 in what seems to us a very short time, will have a 
 seisin protected against the disseisee, and as to alienees 
 of the disseisor, or disseisors of the disseisor, the ques- 
 tion whether the original disseisee may eject them will 
 be the question whether he has stood by for four days 
 since the original disseisin. 
 
 All this seems to me so plainly written on page 
 after page of Bracton's book, that I should have said 
 that there could be no doubt about it whatever, were 
 
 ' Bract, f. i5ob, i6i. ' Brit. vol. n. p. 288. 
 
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426 The Beatitude of Seisin 
 
 it not that Mr Justice Holmes has written something 
 which seems to contradict it. " English law," he says, 
 "has always had the good sense to allow title to be 
 pleaded in defence to a possessory action. In the 
 assize of novel of disseisin, which was a true possessory 
 action, the defendant could always rely on his titled" 
 Now in a certain sense, though not as it seems to me 
 a very precise sense, this is true of days much later 
 than Bracton's, and very possibly the word "always" 
 was not intended to comprehend so remote a time as 
 the thirteenth century ; but as some of the many 
 readers of one of the best of books may suppose that 
 this sentence refers to the law of Bracton's time, I am 
 bound to controvert it, and that too in Bracton's own 
 words. 
 
 In the following passage we have perhaps his 
 fullest statement of the principle that possession is to 
 be protected even against ownership : — 
 
 Si autem verus possessor negligens erit post disseisinam, et 
 negligens impetrator, patiens et dissimulans injuriam, impotens 
 omnino, vel de potentia sua desperans, ut praedictum est, ita quod 
 utramque amisit possessionem, naturalem videlicet et civilem, non 
 succurritur ei nisi per assisam. Et si forte assisam contemnat, et 
 possessionem suam (viribus utens non judicio) sibi usurpare prae- 
 sumat, competit spoliatori propter usurpationem assisa, non quia 
 " injuste " disseisitus sit, sed quia " sine judicio," et quia per negli- 
 gentiam veri domini utramque habere incepit possessionem, naturalem 
 videlicet et civilem. Et si verus dominus habere velit regressum, vix 
 aut nunquam audietur, nisi tantum super proprietate; si autem velit 
 ad assisam recurrere, quae ei primo competebat, non poterit : quia 
 assisam demeruit et gratiam juris, et quia frustra legis auxilium 
 invocat qui in legem committit^ 
 
 ' The Common Law, p. 210. 
 ' Bract, f. 163 b. 
 
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The Beatitude of Seisin 42"] 
 
 Bracton afterwards treats at very great length the 
 possible pleas in bar to the assize. The defendant 
 can only prevent the assize being taken by excepting 
 to some of the words of the writ. The writ inquired 
 " whether B unjustly and without a judgment disseised 
 A of his free tenement in X." If it was found that B 
 had done this, then A recovered his seisin. Now 
 there may seem to us to be two terms in the writ 
 which might be attacked by the true owner who, after 
 some delay, had ejected his disseisor. He might plead 
 that what he did was not done " unjustly," or again he 
 might plead that the tenement from which A was 
 ejected was not A's free tenement. At either point 
 however the law of Bracton's day would meet him 
 and defeat him. As to the "unjustly," Bracton almost 
 explains this word away by saying that every disseisin 
 done "without a judgment" is done "unjustly," z^/'^^j-/^ 
 ^uia sine judicio ; the only force of the word seems 
 this, that a disseisin may be unjust even when there 
 has been a judgment. 
 
 Quamvis verus dominus jus habeat in re et "juste" ejiciat, tamen 
 " injuste " ejicit, quia " sine judicio," et quia propriis viribus reposcit 
 quod per judicem \corr. judicium] reposcere debuit, ideo per judicium 
 restituat quod sibi sine judicio viribus usurpavit; nunquam postmodum, 
 nisi vix tantum super proprietate, erit audiendus; et hoc si post 
 tempus ejiciatur quod sufficere possit pro titulo ad hoc quod sine 
 brevi non teneatur tenens respondere; secus autem asset si incon- 
 tinenti rejiciat disseisitorem\ 
 
 It would be difficult to say in plainer language 
 than this that the true owner, despite his title, may 
 be compelled by a court of law to yield possession to 
 
 ' Bract, f. 205. 
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428 The Beatitude of Seisin 
 
 a disseisor. Then as to the term "freehold" or "free 
 tenement" in the writ. It is competent for the de- 
 fendant to except that the plaintiff was not seised of 
 a free tenement, and in this form divers objections can 
 be made. It may be asserted that the tenement was 
 held of the defendant in villeinage, it may be asserted 
 that the plaintiff was merely in as bailiff or as termor. 
 Such pleas as these are beside our point. But suppose 
 that B with no sort of title but his own strong arm put 
 A out of the land, and that A let some time go by 
 without doing anything, but then returned and cast B 
 out ; A has disseised B of ^'s free tenement ; and 
 the Court not heeding, not permitting any talk about 
 ownership, will put B back again. 
 
 In hoc autem quod dicitur in brevi "de libero tenemento'' corn- 
 petit exceptio tenenti contra quaerentem; sed ad omnes non pertinet 
 exceptio, quia licet "juste" ejicere possunt, tamen non possunt 
 "sine judicio," licet jus habeant ejiciendi. Jus tamen habet recenter, 
 post tempus autem nequaquam; unde si varus dorainus allegaverit 
 quod "juste," replicari poterit quod "injuste" quia "sine judicio." 
 Et unde si verus dominus excipiat quod jus habeat et liberum 
 tenementum, et " injuste et sine judicio " ejectus sit, et quod 
 quaerens qui injuste ejecit feodum et liberum tenementum habere 
 non possit, replicare poterit de tempore, quod verus dominus liberum 
 tenementum amisit, per cursum temporis, per patientiam sive negli- 
 gentiam vel per impotentiam. Patientia enim longa trahitur ad 
 consensum, et negligentia sive dissimulatio obolent injuriam. Et 
 unde disseisitor cum tempus habeat pro se et quasi liberum tene- 
 mentum, sine brevi et sine judicio disseisiri non potest. Et unde 
 si fuerit sine judicio disseisitus et portaverit assisam, non obstabit ei 
 quod liberum tenementum non habuit quaerens, propter usurpa- 
 tionem sine judicio quantum ad verum dominum, et propter tempus 
 quantum ad disseisitum'." 
 
 ^ Biact. f. 209 b. 
 
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The Beatitude of Seisin 429 
 
 It must certainly be admitted — or rather let us 
 particularly observe — that Bracton does here and else- 
 where account for the law's protection of the disseisor 
 partly at least by referring to the disseisee's delay ; 
 he has acquiesced, he has dissimulated, he has been 
 negligent — this very probably is an important moment 
 in the history of our possessory actions ; but of the 
 owner's being able to rely on his ownership there is 
 no talk. On the next page we have these conclusive 
 sentences : — 
 
 Videamus quae poena teneat eos qui seisinam suam in causa 
 spoliationis \corr. teneat eos in causa spoliationis qui seisinam 
 suam] post tempus viribus usurpaverint : intrusor vel disseisitor erit 
 restituendus non obstante aliqua exceptions proprietatis. Et si obstare 
 non debeat exceptio proprietatis in persona veri domini, ut si dicat 
 " Juste disseisivi vos, quia tenementum meum est et ego dominus, 
 et tu nullum liberum tenementum habere potes quia non habes 
 ingressionem nisi per intrusionem vel disseisinam," ita exceptio non 
 valebit ei, quamvis "juste" se ponat in seisinam quantum ad jus, 
 " injuste " tamen hoc facit quia " sine judicio,'' ut supra dictum est. 
 Prius enim cognoscendum est devi quam de ipsa proprietate. 
 
 An examination of the records of Bracton's time 
 will I believe fully bear out his doctrine. But still 
 I think we can see both in them and in Bracton's own 
 pages a certain growing doubt as to whether " seisin of 
 free tenement " does not imply title, not of course good 
 title, but title good or bad. He occasionally hesitates 
 about saying that the disseisor acquires " liberum tene- 
 mentum," and allows him only " quasi liberum tene- 
 mentum '' ; and he is inclined to base the requirement 
 of "tempus" on the necessity for some acquiescence, 
 or negligence, or dissimulation on the part of the 
 disseisee. Seemingly it was a further reflection upon 
 
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430 The Beatitude of Seisin 
 
 and development of this idea of "liberum tenementum," 
 which set at work that great change which makes the 
 law as it is in Littleton so very different from the law 
 as it is in Bracton. Very probably these words in 
 the writ — "de libero tenemento suo" — were originally 
 intended merely as a denial of the assize to the tenant 
 in villeinage; the obvious, primary opposite to "liberum 
 tenementum" is "villanum tenementum." To have 
 given every villein a possessory remedy in the king's 
 own court would have been too daring an infringe- 
 ment of the manorial system even for Henry the 
 Second ; to give such a remedy to every possessor of 
 land not burdened with villein services was a suffi- 
 ciently high-handed invasion of the first principle of 
 feudalism. But in course of time new contrasts are 
 found for the " liberum tenementum." The assize is 
 denied to the termor ; according to Bracton because 
 he holds merely on behalf of his land-lord ; tenet 
 nomine alieno ; so the termor has no free tenement. 
 Then there slowly creeps in the idea of "an estate of 
 freehold " ; " freehold " begins to imply a certain kind 
 of proprietary right. Parallel with this process is the 
 growth of special pleading. In Henry the Third's 
 reign pleas in bar of the assize are becoming frequent. 
 Even if we regard the, assize as still in the very 
 strictest sense a possessory remedy, such pleas have 
 their proper place. The defendant's view is that he 
 has committed no disseisin, that he has ejected nobody, 
 that he obtained his possession under some judgment, 
 fine, feoffment, covenant ; he specially pleads this 
 matter, because he is naturally anxious that delicate 
 questions of law shall not be left in a lump to a dozen 
 
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The Beatitude of Seisin 43 1 
 
 laymen. Such pleas go to the question of possession 
 and dispossession, and I have seen no instance of 
 a plea which, admitting the disturbance of a settled 
 possession, justifies that disturbance as an exercise of 
 proprietary right. But still the development of plead- 
 ing begins (in a manner which should be familiar to 
 us) to turn matter of fact into matter of law. 
 
 But not to anticipate what must come before us 
 hereafter as belonging to a later age. Bracton's 
 doctrine as to the scope of the assize seems in brief 
 this : — it protects possession, untitled possession, even 
 " vicious possession." As to this last point, he expressly 
 accepts the words of the Institutes which describe the 
 scope of the interdictum unde vi as it was in Justinian's 
 day. If O, the owner, turns P, the possessor, out, P 
 will recover his possession even though he obtained 
 that possession from O vi vel clam vel precario. A 
 wrongful ejector however does not acquire possession 
 directly he is the one person on the land, or rather he 
 does not at once acquire possession as against the 
 owner whom he has ejected. Such an ejector will at 
 once be protected against mere outsiders, but he will 
 not be protected against the owner until some days, or 
 it may be months, have elapsed. How to account by 
 a rational theory for this state of things is the difficulty. 
 Bracton is unfortunately, but very pardonably, misled 
 into supposing that according to Roman theory a 
 person who has ceased to possess corpore can go on 
 possessing animo solo. This brings him to lay stress 
 upon acquiescence, to speak as though it were the 
 owner's acquiescence (for four days or so) that gives 
 the ejector a claim to protection, as though this 
 
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432 The Beatitude of Seisin 
 
 acquiescence were equivalent to " title," or were itself 
 a sort of title. It is but a short though an important 
 step forwards from this position to say that what the 
 law protects is not possession, but titled possession, to 
 hold that the " seisin of freehold " which the plaintiff in 
 an assize must prove, is seisin acquired by some lawful 
 title, some act in the law, or else seisin fortified by 
 lapse of time. 
 
 Dr Heusler, to whose excellent account of Bracton's 
 theory of possession^ I owe whatever is good in this 
 paper, says that the assize of novel disseisin gradually 
 becomes a sort of Publiciana, and that in Britton's 
 book the process is complete, " die Besitzklage ist eine 
 formliche Publiciana." We do not, as it seems to me, 
 find inuch change in the actual rules of law as we pass 
 from Bracton to Britton ; we still hear, though some- 
 what indistinctly, of the four days ; but there is a 
 change of theory. In great part this is just a change 
 from clear thought to muddled thought. The grip of 
 possession which a few years ago seemed so assured 
 has been relaxed. By his definition Britton goes so 
 far as to make " property " an essential element of 
 possession: — "possessioun proprement est seisine et 
 tenir de acune chose par cors et par volonte oveke 
 la propretd^." No comment on this is possible, except 
 that the writer was too stupid to understand Bractonl 
 Still we can make out that " title " has now become 
 
 ' Die Gewere, B. 3. c. 3. 
 
 ^ Brit. vol. I. p. 258. 
 
 ^ Bract, f. 33 b. Possessio est corporalis rei detentio, i.e. corporis 
 et animi cum juris adminiculo concurrente. By these last words, 
 which he had from Azo, Bracton only means that there are certain 
 things of which there cannot be a legally protected possession. 
 
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The Beatitude of Seisin 433 
 
 essential to "free tenement." The plaintiff in the 
 assize must have had " title de fraunc tenement." This 
 he may have got by inheritance, by feoffment or the 
 like, or again by peaceable seisin after a vicious entry\ 
 The law therefore no longer endeavours to protect 
 possession against ownership ; but it will protect, even 
 against ownership, something that stands as it were 
 midway between possession and ownership, some 
 tertium quid, that can only be described as " title de 
 fraunc tenement." It is attempting to steer a very 
 difficult course. Of its subsequent adventures here- 
 after'. 
 
 ' Brit. vol. I. p. 309. 
 
 ^ As I do not wish that any one should trust my account of 
 Bracton's theory of possession further than he can see it in Bracton's 
 own pages, I will here give references to the most important passages. 
 I regard the discussion on f. 162 b-i64b as governing all that is said 
 in other parts of the book. Here Bracton is expressly answering the 
 question. Within what time may 1 eject my disseisor? Then see 
 f. 165 b, 168 (line 8), 183 b— 184 b, 195 b, 196, 205, 209-210 b, 
 212b (line 23); also f. 3ob-3ib, 5ib-S2b. It seems to me clear 
 that Bracton in speaking of time has but two sets of phrases, (a) post 
 longum tempus, post longum intervallum, post longam et pacificam 
 seisinam, &c., (b) statim, incontinenti, nullo intervallo, flagrante dis- 
 seisina, &c. ; the disseisor who is not ejected while the disseisin is 
 "flagrant,'' is not ejected until after "a long seisin." As to excepting 
 against a plaintiff that his possession was acquired vi; contrast what 
 is said on f. 160, line 6 (a passage not very intelligible as it stands) 
 with f. 210 b, lines 7-13, where Bracton quotes the Institutes "is qui 
 dejecit cogitur ei restituere possessionem, licet is ab eo qui vi dejecit 
 vi, clam, vel precario possidebat." The Normans seem to have 
 come to a different result in developing their assize, and to have 
 refused this remedy to a plaintiff who had obtained his seisin by 
 force used against the defendant. See Heusler, pp. 371-2. 
 
 M. 28 
 
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II. 
 
 By a previous paper I have tried to draw attention 
 to a great and very remarkable change which came 
 over our law in the course of the later middle ages. 
 Does the law protect possession against property ? If 
 we ask this question in Bracton's day, the answer 
 must be : Yes, it protects possession, untitled and 
 even vicious possession ; if O, the owner, has been 
 ousted by P, he must reeject P at once or not at all ; 
 should he do so after a brief delay, then P will bring 
 the Novel Disseisin against him and will be put back 
 into possession. But if we ask this question in the 
 days of Littleton, the answer must be : No, the 
 common law does not protect possession against 
 ownership, except in those comparatively rare cases 
 in which there has been a descent cast or a discon- 
 tinuance, one of those acts in the law (their number is 
 very small) which have the effect of tolling an entry. 
 In the present paper I propose to collect some cases 
 which illustrate this change, and then to say a little 
 about its causes. 
 
 The fourteenth century produced no great text- 
 writer, and we have therefore to rely upon the Year 
 Books. It may be well therefore to observe that the 
 Year Books are for this or any similar purpose very 
 
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The Beatitude of Seisin 435 
 
 unsatisfactory material, because they are chiefly con- 
 cerned with points of pleading, and by the middle 
 of the fourteenth century pleadings had become very 
 unreal things. Often the whole object of the de- 
 fendant's pleader is delay, and the elaborate story that 
 he tells has in all probability but little connexion with 
 fact ; he is just trying to puzzle the court and his 
 adversary, and so no wonder if he puzzles us. A 
 good selection from the Plea Rolls would be much 
 better material ; because at least occasionally we 
 should find in it some real facts, some cases in which 
 the assize was taken, in which special verdicts were 
 returned and judgments given upon those verdicts. 
 Even in the fourteenth, even in the fifteenth century, 
 some real justice was done, but as it is we can hardly 
 see the justice for the chicane. 
 
 It will be remembered that the Novel Disseisin lies 
 if B unjustly and without a judgment has disseised 
 A of his free tenement. The plaintiff therefore must 
 have been " seisitus de libero tenemento." What does 
 this imply? This is the question which successive 
 generations have to answer. We have heard Bracton's 
 answer, and Britton's. The latter requires that the 
 plaintiff shall have had "title de fraunc tenement," but 
 peaceable seisin for a long time after a vicious entry 
 is enough to give "title de fraunc tenements" that is 
 to say the disseisor himself may acquire a possession 
 protected against the disseisee. In the following 
 notes of cases we may, I think, see this requirement 
 of " title " growing ever more and more stringent : the 
 assize is gradually denied to any one who has himself 
 ^ Brit. vol. I. p. 310. 
 
 28—3 
 
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436 The Beatitude of Seisin 
 
 been party to a disseisin, then to the alienee of a dis- 
 seisor, then to the ahenee of the alienee of a disseisor, 
 until at last the cases in which the true owner is 
 debarred from entering are quite few and very anoma- 
 lous. All the while the theory, so far as there is one, 
 remains this, that one who is " in by title " (as con- 
 trasted with one who is "in by tort") ought not to be 
 ejected without process of law ; but as to what "title" 
 is, we get no clear statement. 
 
 1292. (Y. B. 20 & 21 Edw. I, p. 221.) M is 
 tenant for years, A tenant in fee ; M enfeoffs X ; A 
 suffers X to remain in possession for a quarter of a 
 year and then turns him out, the term not having yet 
 expired ; X brings the assize against A and succeeds. 
 Otherwise would it have been if A had ejected X at 
 once ; as it is, A has suffered X to continue his seisin 
 " e entant granta le franc tenement estre le seu." 
 
 1292. (Y. B. 20 & 21 Edw. I, p. 267.) M is 
 tenant for years, A tenant in fee ; M dies during the 
 term ; his wife N remains in possession for a quarter 
 of a year, and then enfeoffs X, who remains in pos- 
 session for a quarter of a year and is then ejected by 
 A ; X recovers seisin against A in an assize. It is 
 said of A that "par sa suffraunce demeyne si acrut 
 franc tenement a le feffe." Counsel for A says that 
 if a termor alien in fee, yet even if the feoffee con- 
 tinue his estate for half a year, he may be ejected by 
 the reversioner after the end of the term ; "quod non 
 credo verum generaliter," says the reporter. 
 
 1302. (Y. B. 30 & 31 Edw. I, p. 123.) Land is 
 settled on husband and wife and the heirs of their 
 bodies ; they have a son A ; the husband dies ; the 
 
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l^he Beatitude of Seisin 437 
 
 wife marries X ; the wife dies ; X claims curtesy and 
 remains in possession for ten years ; A ousts X ; X 
 recovers seisin against A in an assize. Even if 
 X was not entitled to curtesy, still he entered claim- 
 ing a freehold and ought not to have been ejected 
 after te.n years. The case is a good illustration of 
 possessory procedure, for A at once brings a formedon 
 against X. In this he fails ; but only because the 
 conditional gift was made before the Statute De donis, 
 and so X really was entitled to curtesy. 
 
 1318. (Y. B. II Edw. II, f. 333-4.) It is said 
 by counsel that if tenant for life alienates, and the 
 reversioner does not assert his right for three or four 
 years, the feoffee will be able to recover his seisin 
 against him in an assize. 
 
 1327. (i Ass. f. 2, pi. 13, and Y. B. i Edw. Ill, 
 f 17, 22, Trin. pi. i, 10.) Land is recovered from ^ 
 the true owner by one X whom A had ejected ; such 
 title as X had was derived (without any descent cast) 
 from a grant made by M who had no title, but whom 
 A had suffered to occupy the land ; A had stood by 
 while the land had been dealt with by M and persons 
 claiming under M. Counsel urges that it is " incon- 
 venient " to award seisin to one who has no estate ; 
 but the judgment shows the true possessory spirit, 
 "quod licet A jus habeat ut videtur...tamen de 
 facto suo proprio sine judicio intrare non potuit ; ideo 
 X recuperet seisinam suam." Brooke (Abrid. Entre 
 Congeable, 48) notices that this case, and that last 
 cited, imply a doctrine which in his day was no longer 
 law. He rightly remarks that in cases of this date 
 stress is laid on the fact that the person who has come 
 
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438 The Beatitude of Seisin 
 
 to the land by a feoffment, will, in case he be ejected 
 without action, lose the benefit of vouching his feoffor 
 to warranty. 
 
 1334. (8 Ass. f. 17, pi, 25.) On the death of 
 tenant for life, M who has no right enters and enfeoffs 
 X ; A who is the reversioner enters and is. ousted 
 hy X ; A recovers from X in an assize. The reporter 
 calls on us to note that X was in by feoffment, but 
 that A entered immediately on the livery of seisin. 
 
 1344. (17 Ass. i. 53, pi. 27; Y. B. 18 Edw. Ill, 
 f. 35, Mich. pi. 16.) M is tenant for life, A has the 
 remainder by fine ; M enfeoffs X in fee ; M dies ; A 
 may not enter on X. 
 
 1347. (21 Ass. f. 86, p. 23.) It was said that a 
 man may enter on the feoffee of his disseisor even 
 though the feoffee has continued his estate for ten 
 years. " Tamen quaere," says the reporter. 
 
 1348. (22 Ass. {. 93, pi. 37.) M doweress, A 
 heir ; M demises to X for years and dies within the 
 term ; X holds on after the term ; A may enter on X; 
 but it is argued that he may not : the decision is 
 based upon the fact that X was "pa.rty to the tort." 
 Counsel for X says that after the death of M "nous 
 continuamus nostre possession ans et jours " : of which 
 phrase notice must be taken hereafter. 
 
 1368. (Y. B. 42 Edw. Ill, f. 12, Pasch. pi. 18.) 
 It seems assumed that a disseisee may enter on the 
 alienee of a disseisor and on the alienee's alienee, but 
 may not enter on the disseisor's heir ; the question is 
 raised, Why should this be so, as both heir and alienee 
 are in by title i* — but no answer is found. 
 
 1369- (43 Ass. f 273, pi. 24.) Tenant in tail 
 
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The Beatitude of Seisin 439 
 
 after possibility of issue extinct makes a feoffment in 
 fee and dies ; the reversioner may enter on the feoffee 
 even after the lapse of six years ; but the justices of 
 assize had doubted this and adjourned the case to 
 Westminster. 
 
 1369. (43 Ass. f. 280, pi. 45.) A tenant for life, 
 B tenant in remainder ; A enfeoffs X in tail, re- 
 mainder X.O Y; X dies without issue, K enters ; may 
 B enter on Yl Yes, he may ; but the case is 
 discussed at length and the decision is put upon the 
 ground that Y by entering has made himself a party 
 to the forfeiture and a disseisor, and it still seems the 
 opinion of the justices that one may not enter upon 
 a person who is "in by title." Brooke (Abrid. Entre 
 Congeable, 85) comments on this case thus, " In those 
 days one could not enter on him who was in by title, 
 except in a special case (such as this was) where he 
 was party to the tort, and one could not enter on one 
 who was seised for aJong time (que fuit seisie ans et 
 jours), as appears frequently in the Book of Assizes. 
 But otherwise in these days, for a man may enter on 
 the twentieth alienee if there has been no descent to 
 toll the entry, or something of the sort." 
 
 1376. (Y. B. 50 Edw. Ill, f 21, Mich. pi. 3.) 
 M tenant for life ; A reversioner ; M enfeoffs X for 
 life with remainder to Y in fee ; M dies ; X dies and 
 Y enters ; A or A's heir may enter on Y. This is 
 decided after much debate. It is however asserted by 
 counsel that a reversioner cannot enter on the feoffee 
 of the feoffee of the tenant for life ; at all events if he 
 is to enter he must do so at- once. 
 
 It seems unnecessary to trace this matter further, 
 
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440 The Beatitude of Seisin 
 
 and we have come to the gap in our authorities due 
 to the fact that no Year Books of Richard 11 's reign 
 are yet in print. Before the death of his grandfather 
 the common law seems to be taking its final form ; 
 possession is not protected against ownership except 
 in certain very exceptional circumstances. We shall 
 here do well to observe that Coke, like Brooke before 
 him, well knew that there had been a change in the 
 law. "In ancient times," he says, "if the disseisor 
 had been in long possession, the disseisee could not 
 have entered upon him. Likewise the disseisee could 
 not have entered upon the feoffee of the disseisor, if 
 he had continued a yeare and a day in quiet possession. 
 But the law is changed in both these cases, only the 
 dying seised, being an act in law, doth hold at this 
 day'." In the margin Coke refers to Bracton, Britton 
 and Fleta, and to some of those cases in the Year 
 Books which have already come before us. 
 
 Now as regards the owner.'s right to enter, we 
 seem fully entitled to say that Coke had good warrant 
 for his opinion that there had been a great change in 
 the law, a change in favour of the owner ; he had 
 gained a right to enter in many cases in which it 
 would formerly have been denied to him. But for 
 the more precise rule that a disseisor's feoffee must 
 not be disturbed after year and day, I have not been 
 able to find any definite authority. I think that Coke 
 may have taken it from a statement in Brooke's 
 ^ Abridgement which has been mentioned above. The 
 phrase however which Brooke uses is not "an et jour," 
 but "ans et jours," and this I believe means vaguely 
 
 ' Co. Lit. 237. 
 
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The Beatitude of Seisin 441 
 
 "a considerable time." Coke's rule was not the rule 
 of Bracton's day, for this was yet more favourable to 
 possession. Still even in Bracton's time a year's pos- 
 session was required of an intruder before he could 
 claim protection against the remainderman, and it 
 seems to me very possible that the gradual dissolution 
 of the old law was checked for a moment at the point 
 when protection was still given to a disseisor's feoffee 
 if he had been in possession for year and day. There 
 are certain reasons, which I hope to give on another 
 occasion, for thinking that this may have been the 
 case. 
 
 But now how are we to understand this episode in 
 our legal history, this gradual victory of the rights 
 of ownership over the rights given by possession .'' 
 If, with Mr Justice Holmes, we regard it as a mark 
 of " good sense " that a defendant in a possessory 
 action should be allowed to rely on his title, then we 
 may regard this as a gradual victory of good sense. 
 But let us first note that after all the victory was but 
 partial. It was the nineteenth century before a de- 
 fendant became able to rely upon title, if by title be 
 meant a right to possess the land. The only " title " 
 that even the fully developed common law enabled 
 him to assert was a right to enter upon the land\ In 
 1833 it was still possible that the person entitled to 
 be in possession of land should have no right to enter 
 upon it "sine judicio " ; if he entered and ousted the 
 possessor, he would, I take it, have had no defence 
 to an action of ejectment or to an assize^ That in 
 
 ^ 3 & 4 Will. IV, c. 27, s. 39. 
 = Smith V. Tyndal, 2 Salk, 685. 
 
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442 The Beatitude of Seisin 
 
 actual practice this happened very seldom was not due 
 to the good sense of the common law, but to statutes 
 which had helped the common law out of the bad mess 
 into which it had got in Littleton's day. A statute 
 of 1540 confined the doctrine of descents which toll 
 entries within very narrow limits'. Another statute 
 of the same year prevented a husband from effecting 
 a "discontinuance" of his wife's lands ^ The dis- 
 solution of the monasteries and legislation as to other 
 ecclesiastical corporations, left tenant in tail the one 
 person who could "discontinue the possession," and 
 this power of his became unimportant because gener- 
 ally he could do much more than "discontinue the 
 possession," he could utterly bar his issue, remainder- 
 men and reversioners ^ 
 
 Now by way of explanation of what happened 
 between Bracton's time and Littleton's, it might be 
 suggested that in the course of civilization wrongful 
 ejectments became much rarer, and that therefore it 
 was needless, and if needless then unjust, to maintain 
 the old possessory action in all its pristine rigour. 
 
 ' 32 Hen. VIII, c. 33. 
 
 2 32 Hen. VIII, c. 28, s. 6. 
 
 ^ Mr M. M. Bigelow has kindly informed me that the old rule 
 about descents tolling entries, as modified by the statute of 
 32 Hen. VIII, prevailed in Massachusetts until 1836, in Vermont 
 until 1839, in New York until 1849. I know of no book in which 
 the outlines of the ancient law of real -property are so well stated as 
 Stearns, Real Actions, a course of lectures delivered in the University 
 of Harvard about seventy years ago. The learning of real actions 
 was much better preserved in America than here, because some at 
 least of the States had the good sense to reject our action of eject- 
 ment with its intricate fictions, and to renovate the old direct remedies. 
 
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The Beatitude of Seisin 443 
 
 But it may well be doubted whether during the period 
 of which we speak wrongful ejectments became rarer. 
 The fifteenth century was at least as lawless as the 
 thirteenth. This was the time of forcible entries and 
 private wars, of maintenance and champerty. "In 
 1399." says Dr Stubbs, "the commons petitioned 
 against illegal usurpations of private property ; the 
 Paston Letters furnish abundant proof that this evil 
 had not been put down at the accession of Henry VIP." 
 " Forcible entry and disseisin with violence," says 
 Mr Plummer, " were every-day occurrences, and were 
 almost restored to the position of legal processes 
 which they had held before the invention of the grand 
 assize^" Not a little of the blame for this state of 
 things should rest upon the judges who, by allowing 
 the utmost license to mendacious pleadings, had made 
 the assize of novel disseisin anything but the festinum 
 remedium which it still was in the days of Edward I. 
 That assize must have been very badly handled ; 
 otherwise the Statutes of Forcible Entry would never 
 have been necessary. In 1381, 1391, 1402, 1429, 
 statutes were made which ransack the whole arrhoury 
 of the law for weapons against disseisors, indictments, 
 summary convictions, imprisonment, ransom, actions 
 of trespass, special assizes, restitution, treble damages, 
 treble costs. Even under the strong rule of Henry VIII 
 it was necessary to furbish up these weapons. So late 
 as 1623 there is a new statute for the protection of 
 
 ' Stubbs, Const. Hist. vol. iii. p. 270. 
 
 ^ Forfescue on the Governa?ice of England, Introduction, p. 21. 
 Mr Plummer, I imagine, intends to refer rather to the assize of novel 
 disseisin than to the grand assize. 
 
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444 T"^^ Beatitude of Seisin 
 
 possessors who are not freeholders \ It may I think 
 be gathered from these statutes and the decisions 
 upon them, that the true remedy for a crying evil was 
 found in making forcible entry a crime. The judges 
 refused a civil remedy under the statute of 1429 to 
 a possessor forcibly ejected by an owner whose right 
 of entry had not been tolled ; although such a pos- 
 sessor could have obtained restitution in criminal 
 proceedings^ Whether the makers of the statute 
 meant this may perhaps be doubted ; but at any rate 
 the decision shows how far the judges had departed 
 from Bracton's position ; they could not conceive that 
 a possessor with no title or bad title could be "dis- 
 seised " by a person who had good title, and whose 
 right to enter had not been tolled by descent cast or 
 discontinuance. " Disseisin " in such a context had 
 come to imply something more than dispossession of 
 a possessor, something more than dispossession of a 
 possessor who has colour of title ; it had come almost 
 to mean dispossession of one who has relatively good 
 title by one who has relatively bad title. 
 
 It may be that for a long time past the judges had 
 felt that there was some want of " good sense " in 
 allowing A to recover possession from B, when B 
 was willing to prove that he had a right to be in 
 possession ; some want of good sense because this 
 would be putting A into possession merely in order 
 that a question might be raised in some future action, 
 
 ^ 5 Ric. II, Stat. I. c. 7; 15 Ric. II, c. 2; 4 Hen. IV, c, 8; 
 8Hen. VI, c. 9; 23 Hen. VIII, c. 14; 31 Eliz. c. 11; 21 Jac. I, c. 0:5. 
 
 ^ Y. B. 9 Hen. VI, f. 19 (Pasch. pi. 12) decided the year after the 
 statute was passed. Bro. Abr. Forcible Entrie, pi. 27. 
 
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The Beatitude of Seisin 445 
 
 which might very well be decided once for all in the 
 present. But then the judges of Bracton's day saw 
 no want of good sense in this, so we have to account 
 for the change of mind. What is more, we may never 
 safely refer great changes in the common law directly 
 and immediately to opinions as to what is politic or 
 expedient, least of all changes which took place in the 
 period of the Year Books. Judges and counsel talk 
 little of public policy ; " Fiat justitia, ruat coelum," is 
 their maxim ; the social fabric may fall in with a crash, 
 but their legal logic must have its way. Thoughts of 
 the common weal must be expressed in forensic terms, 
 " seisin " and " freehold " and so forth, before they can 
 influence decisions. To a full explanation of the pro- 
 cess indicated by those notes of cases which I have 
 given above we shall hardly at present attain ; but 
 a little may be done towards clearing the way for 
 other investigators. 
 
 In the first place something may be learned from 
 the history of the law touching the time within which 
 an assize must be brought. It seems that from the 
 first the Norman writ of novel disseisin, which prob- 
 ably we ought to regard as the parent, or perhaps 
 elder sister, of our own, could only be brought by one 
 who had been disseised since last August. Each 
 harvest set a term of limitation running ; if a man 
 was disseised at harvest time he had a full year within 
 which to complain ; if he was disseised shortly before 
 harvest, then he had but a much shorter time. Year 
 and day seems regarded as the normal term of limita- 
 tion, but it is assumed that harvest time is the great 
 time for disseisins. This gives to the Norman law 
 
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446 The Beatitude of Seisin 
 
 a curiously homely character^ In England no such 
 annual limitation was established. Glanvill tells us 
 that the period within which an assize can be brought 
 is fixed from time to time by royal ordinance. The 
 writ that he gives mentions the king's last journey 
 into Normandy, an event that must have been quite 
 recent^ Such ordinances were issued after Glanvill's 
 day ; we find Richard's first and second coronations, 
 John's coronation, John's return from Ireland, Henry's 
 coronation, Henry's journey to Gascony, are chosen 
 as limits behind which a plaintiff may not go. When 
 this last event was chosen it was but seven years old 
 or thereabouts^ The Statute of Westminster I, while 
 it altered the time for other writs, left this unaltered : 
 so in 1275 it seems to have been considered 'that a 
 disseisin committed five and forty years ago was yet 
 " novel." This means a great change, but is little to 
 what follows ; for no other time was limited until the 
 reign of Henry VIII, so that in 1540 a disseisin three 
 hundred years old was still "novels" Now this should 
 be had in mind, for though in theory it may well be 
 possible that an action shall be thoroughly and truly 
 possessory, and yet be subject to no rule that limits 
 a time within which it may be brought, still it would 
 be difficult to maintain the theory in practice. If I be 
 permitted to demand restitution of land on the ground 
 that you ejected me eighty or even twenty years ago, 
 whatever we may call this complaint, it will be difficult 
 
 ^ Heusler, p. 373; Brunner, p. 329. 
 
 ^ Glanv. lib. 13, cap. 32. 
 
 ' Stat. Merton, cap. 8; Ann Burton, p. 252; Bracton, f. 179. 
 
 ■* Stat. 32 Hen. VIII, c. 2. 
 
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The Beatitude of Seisin 447 
 
 to think of it as other than a demand that you should 
 restore to me what is mine, difficult to think of it as 
 based not on proprietary right but on injured pos- 
 session, and difficult because substantially unjust to 
 prevent your pleading whatever title you may have. 
 
 We ought to look below this curious history to its 
 cause, which is not to be found altogether in the 
 I'emissness of parliament. In 1275 parliament in a 
 splendid outburst of youthful vigour was beginning to 
 overhaul the whole law of the land ; and yet a term 
 of more than forty years was not thought too long for 
 the assize of novel disseisin. Ten years later the 
 secret is revealed. " Forasmuch," says the Statute of 
 Westminster II, "as there is no writ in the Chancery 
 whereby plaintiffs can have so speedy a remedy as by 
 a writ of novel disseisin." Here is a summary remedy 
 for the recovery of land, why not extend its beneficent 
 operation ? Why insist that the defendant shall have 
 obtained possession so very recently, or by what is 
 technically called a disseisin ? If we have come by 
 a good form of action, why not use it ? This seems 
 the view of the matter taken by the parliaments of 
 Edward I. A sensible, practical view it may be ; but 
 legal principle avenges itself. If we try to make our 
 possessorium do the work of a petitorium, it will soon 
 refuse to do its own proper work ; questions of title 
 will be raised in it and will be decided. 
 
 Thus the most elementary notions of the law are 
 blurred. Take for instance the classification of actions 
 as real and personal, or real, personal and mixed. 
 This in all probability was not native in our law and 
 was never thoroughly at home there. Bracton intro- 
 
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448 The Beatitude of Seisin 
 
 duces it. He holds indeed that an action for goods 
 cannot be in rem, because the defendant has the option 
 of paying the value of the goods instead of surrender- 
 ing them ; but he knows too much of Roman law to 
 call an action " real " merely because the successful 
 plaintiff" will thereby obtain possession of a specific 
 thing. The Novel Disseisin, for example, is actio 
 personalis; it may be rei persecutoria, but it is per- 
 sonalis^. So the cognate writ of intrusion is omnino 
 personalis"'. So the Quod permit tat Is potius personalis 
 quam realis^. With him the test is rather the nature 
 of the mesne, than the nature of the final, process. 
 If the mesne process is against the thing, if e.g. the 
 land is seized into the king's hand, the action is real, 
 but if, as in the assize of novel disseisin, the process 
 is attachment, then the action is personal. The active 
 party in such litigation is not a demandant, he is a 
 plaintiff", he is not petens, but quaerens. This last 
 distinction perdured to the end ; it is a mistake to 
 speak of a "demandant" in an assize. But after a 
 while an action becomes " real " merely because land 
 is obtained thereby, and it is "mixed" if damages 
 also can be obtained \ Indeed even an action on a 
 covenant may be a real action". Had Bracton been 
 a pupil of Savigny he could not have stated more 
 clearly than he has done, that the Novel Disseisin is 
 
 1 f. 164 b. ' f. 161. 
 
 ' f. 284 b. 
 
 ^ Lit. s. 492 and Coke's comment. 
 
 '" The writ of covenant real, whereon fines were usually levied, 
 was abolished in 1833 along with other "real and mixed actions." 
 See Bl. Com., vol. in. p. 157. 
 
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The Beatitude of Seisin 449 
 
 a personal action founded on tort'. The mere change 
 in terminology, a retrogressive change as it may seem 
 to some, may be explained by the fact that our law 
 became always more insular, our judges always more 
 ignorant of any law but their own ; but that the Novel 
 Disseisin fell into the general mass of real actions 
 requires some further explanation. 
 
 This we may find if we turn to another famous 
 distinction, that between possessory and proprietary 
 actions. Between the proprietary writ of right and 
 the possessory assizes there grows up a large group 
 of actions, the writs of entry. Of their history I hope 
 to write a little on another occasion. Here it must be 
 enough to say that in Bracton's view they are, with 
 some exceptions, distinctly proprietary actions. In 
 course of time however they come to be called pos- 
 sessory. This one fact by itself is enough to warn 
 us that the distinction becomes exceedingly obscure. 
 Now these actions became quite as easy as the assize ; 
 indeed it would seem that they became even easier, 
 for a particular form of writ of entry (the writ of entry 
 in the nature of an assize, or writ in the quibus) came 
 to be commonly used in the fifteenth century instead 
 of the Novel Disseisin. As regards simplicity and 
 dispatch, the equalising process seems to have been 
 rather one whereby the possessorium was deteriorated 
 than one whereby the petitorium was improved. So 
 far as mere "process" is concerned the Novel Dis- 
 seisin must down to the very end, down to 1833, have 
 been a fairly rapid action, quite as rapid I should think 
 as the action of ejectment. Why it went out of use is 
 ' Bract, f. 103 b, 104, 164 b. 
 
 M. 29 
 
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450 The Beatitude of Seisin 
 
 no very easy question ; but apparently the subtleties 
 of pleaders "feigned, dilatory and curious pleadings" 
 worked its ruin\ The formulation in the original writ 
 of the question for the jurors, was a device only suit- 
 able to an age whose law was as yet but meagre. As 
 such terms as "freehold" and "disseisin" become more 
 and more technical, the pleader of one litigant becomes 
 more and more anxious that the question so formu- 
 lated shall not be answered, and the justices take that 
 pleader's side, for they hold that matter of law is for 
 the Court and only the purest fact for laymen. The 
 pleadings in assizes become at least as complicated 
 and "colourable" as the pleadings in other actions, 
 perhaps more complicated and "colourable," because 
 there is a fixed question for the jurors which has to be 
 evaded. And so the assizes fall into the ruck of " real 
 actions." Now it is not inconceivable that a pos- 
 sessory action should be strictly possessory, although 
 it is not distinguished from proprietary actions by a 
 specially summary procedure. But that this should 
 be so must imply a legal theory of possession and of 
 the reasons for protecting it, fully developed and pre- 
 cisely defined. Such a theory our lawyers of the 
 fourteenth century had not got, and the momentous 
 contrasts in procedure were things of the past. It 
 was easy in Henry II's time to distinguish the rapid 
 possessory procedure in the king's court from that 
 proprietary procedure in the feudal courts wherein the 
 tenant after manifold essoins could always wage battle 
 if he pleased. In Edward II's time, when normally 
 all questions of fact (and no other questions) were 
 ^ See Coke's Preface to 8 Rep. 
 
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The Beatitude of Seisin 451 
 
 tried by a jury, when there was as much pleading in 
 an assize as in any other action, when there were 
 writs of entry which some thought possessory and 
 others proprietary, when there was hardly any "real" 
 action in which damages could not be recovered, no 
 wonder that the theory of the Novel Disseisin was 
 not maintained, no wonder that it refused any longer 
 to protect possession against ownership, or only did so 
 in a spasmodic, capricious, half-hearted way. 
 
 Coming a little nearer to our problem, we see that 
 the process which gradually extends the sphere of self- 
 help allowed to the ousted owner begins by permitting 
 him to enter, regardless of lapse of time, upon the 
 person who has himself been guilty of a disseisin. 
 Bracton, we have seen, had apparently inherited a set 
 of ancient positive rules determining the time for re- 
 ejectment ; normally it must be accomplished within 
 four days, but a longer time is allowed to an owner 
 who is absent when the disseisin is committed. But 
 he rationalizes these rules by speaking of patience, 
 negligence and acquiescence. In this there is no 
 harm, even on a very strict theory of possessory 
 remedies, pfovided acquiescence in the mere physical 
 fact of adverse possession be carefully distinguished 
 from any such acquiescence as will serve to confer 
 or extinguish proprietary rights. But even Bracton 
 himself does not bring this out very clearly ; a longa 
 et pacifica seisina protects the possessor against the 
 owner's self-help ; a longa et pacifica seisina bars the 
 owner from his action and acts as a usucapio^. The 
 old positive rules being rationalized away, such 
 ' See especially f. 52. 
 
 29 — 2 
 
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452 The Beatitude of Seisin 
 
 language becomes very dangerous. The problem 
 then becomes this, What length of seisin will serve 
 to confer a "title de fraunc tenement," "an estate of 
 freehold." There is no answer ready; it is a matter 
 for judicial discretion ; the judges lean towards the 
 owner ; there is no longer a striking contrast between 
 possessory and proprietary procedure to direct their 
 thoughts ; they no longer feel, what Bracton felt, that 
 for an owner to take the law into his own hands, to 
 make himself judge in his own cause, is a usurpation 
 of judicial functions, a contempt of court ; they no 
 longer feel the force of the phrase, " injuste quia sine 
 judicio." The notion of acquiescence is an insecure 
 foot-hold, and gradually it slips away. No distinction 
 can be found between the acquiescence which bars 
 entry, and the acquiescence, or rather lapse of time, 
 which bars action. So on the disseisor himself the 
 owner may always enter. 
 
 But cannot firm ground be found in the protection 
 of titled possession ? Let the owner enter on one who 
 is "in by tort," but not on one who is "in by title." 
 It seems that our law was arrested at this spot for a 
 while. ^But really the ground is not firm. To protect 
 possession as such even against ownership, may be 
 wise ; and to protect possession acquired by title and 
 in good faith, may also be wise ; but to require title 
 and yet ask nothing as to good faith can hardly serve 
 any useful purpose. Suppose that A has been dis- 
 seised by ^ ; we refuse to protect B against A's self- 
 help. Then B enfeoffs C ; shall we protect C against 
 A, and this without inquiring whether C took the 
 feoffment in good faith ? To do so is absurd ; for if 
 
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The Beatitude of Seisin 453 
 
 we do it every disseisor will have a C ready to hand. 
 Had a requirement of good faith been introduced, 
 then indeed a halting-place might have been found. 
 But this could not be done ; a psychological investiga- 
 tion was beyond the means, beyohd the ideas, of our 
 law. " The thought of man shall not be tried, for the 
 devil himself knoweth not the thought of man." 
 
 Then again reference must be made to a statute. 
 The Novel Disseisin was so convenient a remedy that 
 its scope was enlarged. The statute of Westminster 1 1, 
 as already said, informs us that " there is no writ in 
 the chancery whereby plaintiffs can have so speedy a 
 remedy as by a writ of novel disseisin." Therefore 
 this writ is to be extended to cases in which as yet 
 it has not lain. If a tenant for years or a guardian 
 aliens in fee, both feoffor and feoffee are to be adjudged 
 disseisors^ It seems probable both from the words 
 of the statute and from Bracton's text that before this 
 act the feoffee was no disseisor, though I know that 
 according to later opinion — at least according to the 
 opinion of some later lawyers — this statute was made 
 " in affirmance of the common law," But this only 
 means that in course of time the same rule was 
 applied to cases not within the very words of the 
 clause : the feoffee of a tenant at will, or by sufTrance, 
 or by elegit, or statute merchant was held to be a dis- 
 seisor'. Such a feoffee therefore was not " in by title." 
 This must have opened up the question. What then 
 is title ? since the mere fact that a person had come 
 to the land by feoffment was inconclusive. For this 
 question there was no easy answer, and we soon find 
 ' Stat. West. II. c. 25. ^ 2 Inst. 412; compared with /iJ?'^. 154. 
 
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454 'The Beatitude of Seisin 
 
 that one who takes a feoffment even from a tenant for 
 life (a person who is seised), is regarded as "party 
 to the tort." It seems to me that the rule which 
 treated a feoffment in fee made by a tenant for life as 
 a forfeiture was not yet well settled in Bracton's day, 
 and that as the law of forfeiture grew stricter the 
 position of feoffees grew worse and worse. Then, 
 as may be seen in some of the cases noted at the 
 beginning of this paper, the question arises as to the 
 feoffee of a feoffee. But no logical rest can be found ; 
 twenty feoffments may be made in one day, and the 
 last feoffee will be just as guilty as the first. So as 
 a general rule the feoffee has no more protection than 
 the feoffor has ; he is unprotected against the owner. 
 The " discontinuances " remain outstanding as excep- 
 tional cases. No forfeiture is involved in them ; if 
 a husband alienates his wife's land, this of course 
 cannot be a forfeiture ; husband and wife are too 
 much one for that : if an abbot alienates the abbey 
 lands, there is no one who can have any right to take 
 the land from the feoffee so long as that abbot is 
 abbot ; as to the tenant in tail, it would have been 
 very difficult to hold that by alienating he forfeited 
 his estate to his own issue. So in these few quite 
 exceptional cases the feoffee comes in without there 
 being any disseisin or any forfeiture ; here then the 
 old rule still prevails, he has a seisin of freehold in 
 which the law protects him even against the true 
 owner. 
 
 The doctrine of descents cast is another relic. 
 Blackstone seeks to account for the law's protection 
 of the disseisor's heir by some ingenious arguments : — 
 
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The Beatitude of Seisin 455 
 
 (i) the heir comes to the land "by act of law, and not 
 by his own act''; (2) "the heir may not suddenly know 
 the true state of his title"; (3) this rule was "admirably 
 adapted to the military spirit of the feodal tenures, and 
 tended to make the feudatory bold in war ; since his 
 children could not by any mere entry of another be 
 dispossessed of the lands whereof he died seised." 
 Such reasoning as this seems to me conspicuously 
 absent in the Year Books. If Blackstone's object was 
 to explain the history of the rule and not to find some 
 excuse for retaining it in the eighteenth century, then 
 he asked the wrong question ; instead of inquiring 
 "Why is the disseisor's heir protected?" he should 
 have inquired, "Why is not the disseisor's feoffee pro- 
 tected ; why is not the disseisor himself protected ? " 
 It seems to me that English law having once given 
 up the attempt to protect mere possession against 
 ownership, stumbled forward towards the "good 
 sense " (if such it be) of never giving any civil remedy 
 against a person, who being entitled to possession, 
 takes possession. But it knew not well whither it 
 was going. For a long time, for a century and up- 
 wards, it had before it a vague idea that though mere 
 possession is not to be protected against the owner, 
 still innocent possession deserves protection. The 
 disseisor's feoffee loses protection because in very 
 many cases he is party to a forfeiture and a tort. On 
 the other hand the heir enters innocently ; death and 
 descent cast are not wrongful acts ; there is no fraud 
 in entering upon that of which one's ancestor dies 
 seised. The law demands innocence ; but innocence 
 it judges by rude external standards. To our minds 
 
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456 The Beatituae of Seisin 
 
 of course the possessor, who of all others is best 
 entitled to favour, is not the heir but "the bon^-fide 
 purchaser for value" who has honestly but unfor- 
 tunately bought a bad title. But an inquiry into good 
 faith, a respect for valuable consideration, these do 
 not belong to the law of the fourteenth century, and 
 if we suppose ourselves unable to try the thought of 
 man, then we shall think that the heir's position is 
 stronger than that of the feoffee. Very probably the 
 latter has been guilty of some tort, very possibly he 
 is but a man of straw behind whom the disseisor him- 
 self is lurking ; but the heir is presumably innocent, 
 and undoubtedly he comes to the land by "title." If 
 however we read Littleton's chapter on " Descents 
 which toll Entries," we shall hardly fail to observe 
 that the protection which is still given when a descent 
 has been cast is given very grudgingly ; every sort of 
 excuse seems accepted for allowing "him that right 
 hath " to enter upon what is his own. The rule which 
 protects the heir looks as if it were being pared to the 
 quick. It has become an isolated anomaly ; that it 
 did not disappear altogether may be in great measure 
 due to Littleton's genius ; a man of his ability had it 
 in his power to stereotype the law at an evil moment. 
 Then, as already said. Parliament came to the rescue 
 and the tolling of an entry became an anomaly, and 
 in actual practice a rare anomaly ; but it was not until 
 1833 that the long experiment, the experiment of 
 Henry Fitz Empress, was brought to a formal and 
 final end. Practically for the last three hundred years 
 and more, theoretically as well as practically for the 
 last fifty years and more, we have had no action in 
 
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The Beatitude of Seisin 457 
 
 which an ejected possessor could recover possession 
 from the owner who ejected him : certainly this is 
 a fact which deserves the consideration of all who are 
 troubled with theories of possession\ 
 
 ' Since this article was in print, Mr H. W. Elphinstone lias 
 suggested that the curious rule of Norman law which makes the last 
 harvest a term of limitation is very intelligible if a system of common 
 fields and common agriculture was prevalent : it is only at harvest 
 time that an owner does any act which manifests an exclusive 
 ownership. 
 
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THE SUITORS OF THE COUNTY 
 COURT^ 
 
 Who were the suitors at the county court ? The 
 generally accepted answer is, all the freeholders of the 
 county. But as regards the thirteenth century there 
 seems to be a great deal of evidence that this was not 
 so. The opinion which our documents favour is much 
 rather this : that suit to the county court was not an 
 incident of freehold tenure, but had become a burden 
 on specific lands ; and that when the number of free- 
 holders was increased by subinfeudation, the number 
 of suitors was not thereby increased. This vill or this 
 manor or this tract of land which belongs to A, owes 
 suit to the county court ; A enfeoffs B, C, and D with 
 pieces of land ; the whole vill, manor, or tract still owes 
 the accustomed suit, but it owes no more ; by whom 
 this suit shall be done is a matter that A, B, C, and Z) 
 settle among themselves by the terms of the feoffments. 
 In this respect the burden of suit of court is very like 
 the burden of scutage ; the amount of scutage is not 
 increased by the. creation of new sub-tenancies, but the 
 ultimate incidence of scutage can be settled by feoffor 
 and feoffee. 
 
 The Hundred Rolls of 1279 supply a large stock 
 of illustrations, a few of which shall be given. In 
 Cambridgeshire the greater part of the vill of Bot- 
 ' English Historical Review, July 1888. 
 
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The Suitors of the County Court 459 
 
 tisham is held of the earl of Gloucester by the priors of 
 Anglesea and Tunbridge ; but there are two tenants 
 of the earl's there who do suit to the hundred and 
 county courts for the whole township : Dominus Simon 
 de Mora tenet unam virgatam terre de eodem Comite 
 et facit sectam ad comitatum et hundredum pro Comite 
 et pro tota villata ; Martin son of Eustace holds two 
 virgates on the same terms'. The abbot of Ramsey 
 has a manor at Burwell in the same county; the jurors 
 do not know that he does any service for it except two 
 suits to every county court ; facit duas sectas comitatus 
 Cantebrigie de comitatu in comitatum. But these two 
 suits are actually done for him by two tenants ; J. A. 
 holds a hide and does one suit to the county and to 
 the hundred from month to month for the abbot ; 
 B. B. holds ninety acres and does one suit to the 
 county and to the hundred for the abbotl In Croxton 
 in the same county there are two manors ; the lord of 
 one does two-thirds of one suit {duas partes unius secte) 
 to the hundred and county ; the remaining one-third is 
 done by a freehold tenant of the other manorl The 
 suit is thus split into fractions ; at Yaxley a tenant 
 owes a half-suit to the county court and an entire suit 
 to the lord's court [dzmidiam sectam, sectam integram)*. 
 At Isleham again the suit has been partitioned ; for 
 half the year it is done by H. H., for the other half 
 of the year by two tenants of his'. Indeed in these 
 rolls it is a quite common thing to find some one of 
 the freehold tenants marked out as doing the suit for 
 
 ^ Rotuli Flundredorum, ii. 488. 
 
 ^ R. H. n. 499. ^ R. H. II. 508, 509. 
 
 * R. H. II. 640. = R. H II. 504. 
 
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460 The Suitors of the County Court 
 
 the manor or the vilP; this is the service or part of the 
 service whereby he " defends " his land against the lord 
 {defendit duas virgatas terrcs faciendo sectam ad comi- 
 tatum Huntingdonie et ad hundredum de Normancros 
 pro dido domino^. In Oxfordshire the jurors have a 
 technical name for such a tenant ; he is the attornatus 
 feoffatus. At Shifford the abbot of Eynsham has a 
 manor for which he must come twice a year to the 
 hundred court, and he owes suit from three weeks to 
 three weeks by {per) William Freeman his enfeoffed 
 attorney and his only freehold tenant'. The prior of 
 Deerhurst owes one single suit {debet unicam sectam) 
 to the county of Oxford for his manor of Taynton, and 
 this is done for him by J. S. his attorney enfeoffed for 
 this purpose in ancient times {attornatum suum ad hoc 
 antiquitus feoff atuni)^. Many of the Oxfordshire land- 
 owners owe suit to the county court but twice a year. 
 
 In the monastic cartularies we find the same thing. 
 Thus, at Hemingford, according to the Ramsey Cartu- 
 lary'', Simon Geoffrey's son holds two virgates for 
 which he " defends " the township at the county and 
 hundred, and when the justices in eyre come round 
 he must appear as reeve {erit loco prepositi). At 
 EUington, John John's son holds a hide for which he 
 does suit to every third county court* ; at Holywell, 
 Aspelon of Holywell does the suit to the county and 
 hundred', at Broughton it has been done by Nicholas 
 Freeman^ We can trace John of Ellington from the 
 
 1 E.g. R. H. II. 434, 559, 627-8-9. 2 R. H. 11. 659. 
 
 ^ R. II. II. 701. "* R. H. II. 733, another case on p. 743. 
 
 " R. H. I. 382. " R. H. I. 491. 
 
 ' R.H.i. 296. " R.H.i. 333. 
 
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The Suitors of the County Court 461 
 
 cartulary to the hundred roll, and still find him doing 
 his "one-third part of one suit" to county and hun- 
 dred \ Turning to the Gloucester Cartulary, we find 
 a charter of Feoffment whereby the feoffee is bound to 
 acquit the vill from suit to all courts of the hundred, 
 or of the county or of justices in eyre, and all other 
 suits which pertain to the said vilP. At Clifford, 
 R. E. and another freeholder pay no rent, but are 
 bound to do the lord's suit to the county and hundred; 
 and if by their default the lord be distrained, they must 
 indemnify him I At Northleach is a freeholder who 
 in respect of his land owes suit for the lord to the 
 county court of Gloucestershire and to all the hundred 
 courts of Cirencester, and must remain before the 
 justices in eyre during the whole of their session ^ 
 A particularly clear case occurs on the Ramsey manor 
 of Cranfield in Bedfordshire : there are four virgates 
 which pay no rent because they defend the whole 
 township from suit to the hundred and county courts 
 — they are virgates qucB sequuntur comitatum et 
 hundredum. pro tota villata ; and this is an ancient 
 arrangement, the result of some vetus feoff amentum^ . 
 All this seems inconsistent with the notion that 
 every freeholder as such owes suit to the county court. 
 The quantum of suit due from the whole county is 
 regarded as having been once for all fixed at some 
 remote time. Very usually a vill is the unit which 
 owes a full suit. In that case the lord of the vill, if 
 the vill is owned by one lord, is primarily liable to 
 do the suit or get the suit done : usually he has 
 
 1 R. B. II. 656. "' R. H. I. 386. ' R. H. III. 49. 
 
 * R. H. III. 180. '' Cart. Rams. i. 438, 439. 
 
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462 The Suitors of the County Court 
 
 stipulated that it shall be done for him by one of his 
 feoffees — the feoffee, let us say, of a particular virgate. 
 Then as regards the feoffor that virgate is burdened 
 with the suit, and the burden will lie on that virgate 
 into whosesoever hands it may come. 
 
 Really when one looks at the Hundred Rolls it 
 is quite impossible to suppose that every freeholder 
 did suit to the county. There are too many free- 
 holders for that. On many manors, it is true, there 
 were hardly any freeholders ; this is true in particular 
 of the manors belonging to the religious houses ; such 
 houses were as a rule very chary of creating freehold 
 tenancies ; they kept but two or three freeholders, 
 one of whom had often been enfeoffed for the special 
 purpose of doing the suit diie from the whole manor 
 or township. But on the estates of lay lords there 
 were often many small freeholders. Thus at Bot- 
 tisham the earl of Gloucester seems to have over forty 
 freeholders. Are they bound to go to the county 
 court month by month ? No, two of them do the suit 
 for the whole vilP. The plenus comitatus was not 
 a very large assembly. 
 
 As regards suit to the hundred court we have 
 some yet clearer information. The view taken by 
 the jurors from whose verdicts the Hundred Rolls 
 were compiled, very distinctly was that suit was a 
 burden upon particular tenements, and that the sub- 
 division of those tenements by the process of subin- 
 feudation ought not to increase the number of suitors. 
 They complain that the earl of Surrey, who owns the 
 hundred court of Gallow, has not observed this rule. 
 ' R. H. II. 488. 
 
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The Suitors of the County Court 463 
 
 There was, for instance, a tenement in South Creake 
 containing 100 acres ; it owed a single suit ; it has 
 been divided into forty tenements, and forty suits 
 are exacted. Many other examples are given^ A 
 similar complaint goes up from the hundred of 
 Humbleyardl So, again, when the tenement be- 
 comes divisible among coheiresses, the number of 
 suitors should not be increased ; the burden of the 
 suit should lie on the share of the eldest sister. That 
 this rule has been infringed is matter of complaint 
 in the hundred of North Erpingham^ So in the 
 Bingham wapentake of Nottinghamshire there are 
 but twelve tenements which owe suit ; their holders 
 have been enfeoffed for the purpose, and there ought 
 to be no other suitors*. The wapentake of Rushcliffe 
 in the same county has but six suitors, each owes 
 suit in respect of a particular tract of land^ 
 
 How could this somewhat capricious distribution 
 of the burden, to which the Hundred Rolls bear 
 witness, have been effected ? By way of answer to 
 this question we may suppose — this can be but an 
 hypothesis, for evidence fails us — that when Henry I 
 revived and enforced the duty of attending the local 
 courts, that duty was conceived as being incumbent 
 on all freeholders, or rather (and the exception is 
 important) on all freeholders who or whose overlords 
 had no chartered or prescriptive immunity ; but that 
 it was also conceived as being, like the taxes of the 
 time, a burden on the land held by those freeholders, 
 so that when the land held by one of them was split 
 
 1 R. H. I. 455- ' R- H. I. 477- ^ R. H. \. 498. 
 
 * R. H. II. 318. ' R. H. II. 28. 
 
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464 The Suitors of the County Court 
 
 up by subinfeudation or partition among heiresses, the 
 number of suits due was not increased. Some such 
 supposition seems to be warranted by the " Leges 
 Henrici Primi," which after Dr Liebermann's re- 
 searches we may ascribe to Henry I's reign. All the 
 terrarum domini are bound to attend ; but if any lord 
 attends by himself or his steward, he thereby acquits 
 his whole demesne\ This last passage may very 
 well mean that if he bestows part of his demesne on 
 a feoffee, a single suit will acquit them both. That 
 during the thirteenth century the number of free- 
 holders increased rapidly, there can be no doubt ; but 
 an increase in the number of freeholders did not mean 
 an increase in the number of suits due to the county 
 court. 
 
 Of course it may be that on special occasions, in 
 particular to meet the justices in eyre, all the free- 
 holders were bound to attend the county court. But 
 it is possible to doubt even this. The words in the 
 writ of summons directing all freeholders to come may 
 well have been understood to mean all freeholders 
 who owed suit. An examination of the amercements 
 for non-attendance and the " essoins of the general 
 summons " found on the eyre rolls might throw some 
 light upon this problem ; to a superficial glance they 
 do not seem nearly adequate to support the received 
 opinion. But at any rate it seems plain that the 
 ordinary form of the county court, th&plenus comitatus 
 which heard cases and delivered judgments, was not 
 an assembly of all freeholders, but an assembly of 
 those persons who by means of proprietary arrange- 
 ^ Leg. Hen. Prim. c. 7. 
 
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The Suitors of the County Court 465 
 
 ments between lords and tenants had become bound 
 to do that fixed quantum of suit to which the county 
 court was entitled. It was not an assembly of the 
 king's tenants in chief, though probably the persons 
 primarily liable were in many or most cases the 
 tenants in chief. On the contrary, the person who 
 does the suit, and who is bound by tenure to do 
 the suit, is sometimes a small socager holding a 
 single virgate. But though it was not an assembly 
 of tenants in chief, it was not an assembly of all free- 
 holders. 
 
 It is impossible to speak of this matter without 
 perceiving that there is a big question as to "the 
 county franchise " in the near background. That 
 question we need not now attack ; but before it is 
 solved we ought to have a clear opinion as to who 
 were the persons bound to do suit at the county court, 
 and it is here humbly submitted that the received 
 opinion as to this obligation does not harmonise with 
 the evidence. Of course, it is conceivable by us that 
 though all freeholders were not bound to attend the 
 court, still all had a right to attend. But would such 
 a right have been conceivable by a man of the thir- 
 teenth century ? If we asked him as to the existence 
 of such a right, might he not reply by asking us 
 whether those modern Englishmen who are not bound 
 to pay income tax, enjoy the right of paying it if they 
 please } The right to do what nobody wants to do 
 can hardly be said to exist. It would have been very 
 dangerous for any one to attend the county court 
 unless he was bound to go there, for he would have 
 been creating evidence of a duty to attend ; sotebat 
 
 M. 30 
 
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466 The Suitors of the County Court 
 
 facere sectam, sed modo subtrahit se — this would have 
 been the neighbours' opinion as to the conduct of an 
 occasional attendant. We may some day have to 
 confess that the original " county franchise " (if we 
 may use that term to describe what those who had 
 it would have regarded as the very negation of a 
 " franchise "), so far from being settled by the simple 
 rule that all freeholders have votes, was really distri- 
 buted through an intricate network of private charters 
 and prescriptive liabilities. 
 
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THE SHALLOWS AND SILENCES 
 OF REAL LIFE^ 
 
 In the above title we claim no copyright, and we 
 freely place it at the service of any of our readers who 
 may be on the outlook for a pretty name to give to 
 some volume of pensive musings. " The Shallows 
 and Silences of Real Life," by the author of " Soul 
 Flakes," "Seaweed from the Sands of Time," "The 
 Cosier Corners of a Quiet Pew," etc., would look well, 
 and should command a sale in serious family circles. 
 But it requires only a slight acquaintance with our 
 classical literature and our current politics to under- 
 stand that here we mean to speak of county govern- 
 ment. Many mean to speak of it before long ; we 
 shall be deluged with speeches about it ; there will 
 be severe fighting, and like enough, before the end of 
 the session, every one, by virtue of his political pro- 
 fession as Tory or Radical, will be bound to have or 
 suppose that he has very definite opinions about all 
 its pettiest details. While as yet the strife is but 
 beginning, we have still time to cast a quiet look 
 around us, and to inquire in a spirit of truth, what 
 all the fuss that we anticipate is going to be about. 
 
 ' The Reflector, February 1888, 
 
 30—2 
 
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468 The Shallows and Silences of Real Life 
 
 To put the matter briefly, an old form of local 
 government which has served us for five centuries 
 and more, is breaking up, and, to say the least, must 
 undergo a great change which cannot leave even its 
 essential character unaltered. A vital organ of the 
 body politic must be renewed. Hitherto such govern- 
 ment as our counties have had, has been government 
 by justices of the peace — government, that is, by 
 country gentlemen, appointed by the Lord Chancellor 
 in the Queen's name, on the recommendation of the 
 Lord Lieutenant of the county, legally dismissible at 
 a moment's notice ; but practically holding their offices 
 for life. This institution has had a great past, we had 
 almost said a splendid past ; but Englishmen, unless 
 they are taught by foreigners, seldom see its greatness, 
 and to talk of splendour might therefore seem absurd. 
 Our historians, even some who write what call them- 
 selves " constitutional histories," are apt to spend all 
 their energies upon describing the flashy episodes 
 of national life, scenes in Parliament, tragedies on 
 Tower Hill, the strife of Whigs and Tories, wars and 
 rumours of wars. 
 
 To deal with the vulgar affairs of commonplace 
 counties, to show what the laws made in Parliament, 
 the liberties asserted in Parliament, really meant to 
 the mass of the people, this was beneath their dignity 
 or beyond their industry. To chronicle such exiguous 
 beer (for even of the control over ale-houses there is 
 much to be said) would bring no fame, and would be 
 a very laborious task. Some day it will be otherwise : 
 a history of the eighteenth century which does not 
 place the justice of the peace in the very foreground 
 
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The Shallows and Silences of Real Life 469 
 
 of the picture, will be known for what it is — a carica- 
 ture. The excuse for our historians — and of course 
 there is an excuse — is this : that having been brought 
 up to regard the justice of the peace as a perfectly 
 natural phenomenon — natural as the air we breathe — 
 they find nothing to say about this incarnation of the 
 obvious. If there had not been justices, this indeed, 
 as a thing contrary to nature, would have called for 
 explanation, and perhaps regret. We say that some 
 day it will be otherwise, for no doubt there is a great 
 change coming. When it has come and has worked 
 for a while, then to those reared under the new system 
 the historian will have to explain that their fathers 
 lived under a very different system, and one which 
 well deserves retrospective examination, possibly 
 retrospective praise. We think that the praise will 
 come, that it has been deserved by centuries of 
 honest, capable, unostentatious work. The justice is 
 a modest man ; he has no constituents, and therefore 
 can afford to be modest ; perhaps he seldom knows 
 how important he really is. He has become accus- 
 tomed also to hear small wit broken over "the great 
 unpaid " ; and, doubtless, to be great and yet unpaid 
 is a piece of aristocratic insolence. We ourselves will 
 confess to having referred to two famous justices of 
 Henry IV's reign, in the hope — a vain hope, we fear 
 — of attracting readers by a title which should recall 
 an excellent piece of good wit. But to have made 
 men merry, this surely is not even yet the unpardon- 
 able sin ; that from age to age people have been 
 pleased to be pleasant over their governmental institu- 
 tions is surely not a fact which damns those institutions 
 
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470 The Shallows and Silences of Real Life 
 
 as unsuitable to the people. A joke is better than a 
 curse, and local rulers have not always gone uncursed 
 in all parts of the world. 
 
 Certainly, to any one who has an eye for historic 
 greatness it is a very marvellous institution, this Com- 
 mission of the Peace, growing so steadily, elaborating 
 itself into ever new forms, providing for ever new 
 wants, expressing ever new ideas, and yet never 
 losing its identity, carrying back our thoughts now 
 to a Yorkist, now to a Lancastrian king, stamped with 
 the sign manual of the Tudor monarchy, telling us of 
 rebellion, restoration, revolution, of peaceful Georgian 
 times, of the days of Bentham and the great reforms. 
 Look where we may, we shall hardly find any other 
 political entity which has had so eventful and yet so 
 perfectly continuous a life. And then it is so purely 
 English, perhaps the most distinctively English part 
 of all our governmental organisation. The small 
 group of country gentlemen appointed to keep the 
 peace, to arrest malefactors, and lead the hue and cry, 
 acquires slowly and by almost insensible degrees the 
 most miscellaneous, multitudinous duties, judicial and 
 administrative, duties which no theorist will classify, 
 for their rich variety is not the outcome of theory, but 
 of experience. And all the while this group shows 
 the most certain sign of healthy life ; it can assimilate 
 fresh elements of the most different kinds, and yet 
 never cease to be what it has been. Aristocratic it 
 has been from the first, but never oligarchic ; always 
 ready to receive into itself new members who would 
 have the time, the means, the will to do the work, 
 without inquiring into the purity of their pedigrees or 
 
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The Shallows and Silences of Real Life 47 1 
 
 their right to coat armour. Our justices have never 
 been a caste, nor the representatives of a caste ; there 
 has been nothing feudal, nothing patrimonial in their 
 title ; they have represented the State, and yet no one 
 would call them officials. They have adapted them- 
 selves to many changes in their environment ; they 
 may do so yet once more. 
 
 Now, no one doubts that a great change is at 
 hand, that the justices are going to lose some of their 
 most important functions. But that this should be so 
 is not a little strange. Generally, when some great 
 change is at hand in the domain of politics, very 
 strong language is used about the "abuse"— for such 
 it is called — that is to be destroyed. The vials are 
 outpoured, the trumpets are blown, doomsday has at 
 last overtaken the wicked. A terrible indictment is 
 sworn, in which the weakest words are incompetence 
 and corruption, oppression and extravagance. In the 
 present case there has been nothing of the sort ; the 
 most zealous advocates of reform have hardly gone 
 beyond a more or less graceful pleasantry. 
 
 Shallow, as they call him, is at worst an anomaly, 
 and Silence is obviously an anachronism in this 
 eloquent nineteenth century. It is not asserted that 
 the justices, in administering the affairs of the county, 
 have been corrupt or extravagant. Notoriously the 
 fact is otherwise. For the last half-century we have 
 been trying many experiments in local government : 
 we have had municipal corporations, poor-law boards, 
 boards of health, school boards, all constituted on 
 different principles. The result of these experiments 
 is simply this : that of all known forms of local govern- 
 
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472 The Shallows and Silences of Real Life 
 
 ment, government by justices of the peace is the purest 
 and the cheapest. More than this can be said ; it is 
 the form which requires least control on the part of 
 the central Government ; this is no slight merit in 
 these days when all are complaining of over-centrali- 
 sation. The average justice of the peace is a far 
 more capable man than the average alderman, or the 
 average guardian of the poor ; consequently he re- 
 quires much less official supervision. As a governor 
 he is doomed ; but there has been no accusation. He 
 is cheap, he is pure, he is capable, but he is doomed ; 
 he is to be sacrificed to a theory, on the altar of the 
 spirit of the age. 
 
 Let it well be understood that a great change is 
 absolutely necessary. Taken as a whole, our local 
 government is a weltering chaos out of which some 
 decent order has to be got. During the last fifty 
 years boards of ever so many different kinds have 
 been created all over the country ; their districts 
 overlap, their powers conflict ; they are not much 
 respected, they are not much trusted ; their duties are 
 too humble to attract competent men ; they have to 
 be bound hand and foot by the orders of a central 
 bureau. Rearrangement and consolidation there must 
 certainly be, and the sooner the better. This work 
 cannot possibly be done without interfering with the 
 powers of the justices ; and to increase the powers of 
 the justices no one proposes. If we ask why not, the 
 answer must be that the spirit of the age forbids it. 
 Rightly or wrongly, we have determined to carry the 
 principle of popular election into every department 
 of Government. To regret this would be vain, and 
 
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The Shallows and Silences of Real Life 473 
 
 the control of the central Government having already 
 been placed in the hands of the great mass of the 
 people, it seems to us distinctly desirable that the con- 
 trol over the local government should be in the same 
 hands. 
 
 The wisest advocates of representative govern- 
 ment — those who have based their case, not upon 
 natural rights, but upon considerations of national 
 welfare — have laid much stress upon the educational 
 influence of the electoral franchise. Now, if ever the 
 multitude of the newly-enfranchised is to be educated 
 by having votes, it must be by having votes which 
 they can exercise about matters fairly within the 
 range of their intellect and their interests. It is 
 possible, and we hope not treasonable, very seriously 
 to doubt whether the issues of national politics are at 
 the present day within that range. About local affairs 
 the judgment of the average elector is already better 
 worth having, and it would become still more valuable 
 if local affairs were to gain new dignity and import- 
 ance. As it is, we have begun at the wrong end ; we 
 have asked men to have opinions about extremely 
 difficult questions, when they have never had a chance 
 of forming effective opinions about simpler questions. 
 Any way, the education of the electoral body will be 
 a very long affair ; but there is no school for it but 
 that which is kept by experience. Perhaps the lesson 
 of the parish should have been learned before the 
 study of the county was begun, and the county should 
 have been mastered before the kingdom was touched. 
 Things have fallen out otherwise. This could hardly 
 have been helped, and the mistake may not yet be 
 
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474 T^he Shallows mid Silences of_ Real Life 
 
 irretrievable. By the commission of copious blunders 
 in local business, the governing class may be taught 
 to avoid more disastrous blunders in national business. 
 A highly-privileged governing class we have raised 
 up — a class with ample political rights and few 
 political duties. Duties should be provided for it. 
 In vain we think of old times, when the voter was 
 one who, in countless ways, had to serve his township, 
 his county, his king. We cannot invite our rulers 
 even to take their turn at jury service ; they would 
 refuse the invitation ; and if they accepted it, there 
 would soon be an end of trial by jury. We trust men 
 to decide the question of Home Rule whom we would 
 not trust to try an action for slander. There seems 
 nothing for it but to give them a sphere of action in 
 which the consequences of their errors should be very 
 obviously manifest. At present there is no such 
 sphere. The various local boards which exist are too 
 obscure ; governmental powers have been too much 
 macadamised ; responsibility has been scattered about 
 in fragments ; not one man in a thousand knows under 
 how many " authorities " he lives. 
 
 The situation is critical ; it should be faced boldly. . 
 If it is so faced there is a chance that out of a great 
 deal of immediate evil some permanent good may 
 come. There will be jobbery and corruption, in- 
 competence and extravagance, very possibly there will 
 be gross injustice. Then will come the cry for ever 
 fresh interferences on the part of the central Govern- 
 ment, for more State-appointed inspectors, accountants, 
 auditors ; but if the lesson of the past fifty years has 
 really been of any good to us, the cry should be reso- 
 
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The Shallows and Silences of Real Life 475 
 
 lutely resisted. The local bodies should be left to - 
 flounder and blunder towards better things. A local 
 board under the present pressure of central govern- 
 ment is a sorry thing ; a body, which, if it is unwise, 
 is futile ; which, if it is wise, is governed by its clerk. 
 That pressure should be lightened ; there is no good 
 in half trusting men ; they should be trusted fully 
 or not at all. The fullest trust, however, does not 
 necessarily imply that the person trusted is wise ; it 
 may well mean only that he ought to have an oppor- 
 tunity of showing himself how unwise he is. Give 
 the local " authorities " a large room in which, if they 
 can do no better, they can at least make fools of 
 themselves upon a very considerable and striking 
 scale. Such is the counsel that we are inclined to 
 give, and it is one which should be acceptable to all 
 parties in the State. 
 
 For a similar reason it may be hoped that no 
 elaborate attempt will be made at a compromise 
 between the old and the new. If the principle of 
 government by elected representatives is to be 
 extended, it should be extended frankly and courage- 
 ously, otherwise there will only be fresh irritation 
 and discontent. The hope of securing able and just 
 administrators must now lie, not in the creation of 
 fancy franchises, which at best are fleeting, rickety 
 things, but in the character of the work. It must 
 be made dignified and attractive. If possible, men 
 of the same stamp as those who have hitherto been 
 active at Quarter Sessions should be obtained ; but 
 no tinkering of the electoral machinery can assure 
 this result. The old spirit, the spirit which century 
 
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476 The Shallows and Silences of Real Life 
 
 after century has moved the squires of England to 
 work hard in their counties, doing justice and keeping 
 order, is not yet extinct. Capable men there are, and 
 it will be possible to attract them if the work to which 
 they are called is interesting, important work, and not 
 the mere registering of the orders of the central bureau. 
 If they have patience they will be elected, if elected 
 they will be heard ; for even the most ignorant and 
 careless electorate will at times be convinced that the 
 foolishness of fools is folly. 
 
 The outlook is certainly gloomy ; the darkest cloud 
 has not yet been mentioned. If the justices are de- 
 prived of their governmental work, will they care to 
 be justices any longer? This is a momentous question; 
 on the answer to it depends a great deal of the future 
 history of England. Suppose that they abandon the 
 judgment seat ; in place of the collegiate body of 
 unpaid justices we shall have the paid professional 
 magistrate, the inevitable "barrister of seven years' 
 standing." This will mean more patronage for the 
 Minister, more promotion for politically useful lawyers, 
 and, of course, more expense. But it is not of expense 
 that we would speak. It is indeed very difficult to 
 tell how much of the English respect for law, which 
 (though recent ebullitions may look to the contrary) 
 is still deep-seated, is centred in the amateur justice 
 of the peace. If we have to name the institution 
 which has had most to do with its growth, we should 
 long hesitate between the Commission of the Peace 
 and Trial by Jury. Englishmen have trusted the 
 law ; it were hardly too much to say that they have 
 loved the law ; but they have not loved and do not 
 
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The Shallows and Silences of Real Life 477 
 
 love lawyers, and the law that they have loved they 
 did not think of as lawyers' law. The most learned 
 "barrister of seven years' standing" will find it hard 
 to get so high a reputation among country folk for 
 speaking with the voice of the law, as that which has 
 been enjoyed by many a country squire whose only 
 juristic attainment was the possession of a clerk who 
 could find the appropriate page in Burn's fustice. 
 
 This reputation depended in part on the fact that 
 the squire was the squire, and respect for the squire 
 as such is certainly disappearing ; but it depended also 
 on the fact that the squire was no trained lawyer, that 
 his law was very simple, that his words were few and 
 plain, and went straight to the point. Of course we 
 can all, when occasion serves, make merry over justices' 
 justice ; but if we look at the history of this justice as 
 a whole, we see that it has been marvellously, paradoxi- 
 cally successful. Even at the present day, if the honest 
 people who come in contact with magistrates (the votes 
 of the criminal class we are not at pains to collect) had 
 their choice between lawyers' law and justices' justice, 
 we should find that the coarser article had many humble 
 admirers. At any rate, it should be understood that 
 the future of the amateur magistracy is very doubtful. 
 Hitherto the dreary task of hearing petty charges 
 has been varied and enlivened by very miscellaneous 
 business of a more or less governmental kind. Whether 
 many men will care to be mere police magistrates, and 
 get no pay for the work, is certainly open to question. 
 Time after time the country gentlemen have risen to 
 the occasion ; they may do so yet once more. 
 
 But the severance of administrative from judicial 
 
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478 The Shallows and Silences of Real Life 
 
 work must have very serious consequences. It is 
 curious that some political theorists should have seen 
 their favourite ideal, a complete separation of admini- 
 stration from judicature, realised in England ; in 
 England of all places in the world, where the two 
 have for ages been inextricably blended. The mistake 
 comes of looking just at the surface and the showy 
 parts of the constitution. The work of separating 
 what have never been conceived as separate will be 
 hard enough ; but suppose it done, shall we be the 
 gainers ? Hitherto all the business of granting 
 licenses, and the like, has been transacted by men 
 trained in judicial work, men seated on a bench, men 
 holding sessions, men who on the same day would 
 like enough have to try a vagabond, or to consider 
 whether there was sufficient reason for sending a 
 prisoner to trial for murder. We puzzle foreigners 
 by our lax use of the word "jurisdiction," and it is 
 remarkable enough. Whatever the justice has had 
 to do has soon become the exercise of a jurisdiction ; 
 whether he was refusing a license or sentencing a 
 thief, this was an exercise of jurisdiction, an appli- 
 cation of the law to a particular case. Even if a 
 discretionary power was allowed him, it was none the 
 less to be exercised with "a judicial discretion"; it was 
 not expected of him that he should have any "policy"; 
 rather it was expected of him that he should not have 
 any " policy." And now all this is likely to be other- 
 wise. A board will take the place of the bench ; a 
 policy voted about by constituents will take the place 
 of law. All will be very neat and pretty, and explic- 
 able by first principles ; the administrative work will 
 
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The Shallows and Silences of Real Life 479 
 
 be performed by the elected representatives of those 
 whose interests are concerned ; for the judicial work 
 there will be the barrister of seven years' standing. 
 The amphibious old justice who did administrative 
 work under judicial forms, will be regarded as in- 
 adequately differentiated to meet the wants of a highly 
 evolved society. But unless our reformers go very 
 wisely to work, they will sacrifice the substance of just 
 government to mere theoretic elegance. Much is at 
 stake, no less than the general trust of the people in 
 law and government. What first and foremost is 
 wanted in local government, is not administrative 
 ability, but plain justice ; whether we shall get this 
 out of boards elected to echo party cries, to represent 
 policies, remains to be seen. Our best hope must be 
 that such men as those who have hitherto done work 
 of every kind under the name of justices, will still do 
 that work, and more also, partly under the name of 
 justices, partly under some other name. Unless the 
 services of such men can be obtained, the present year 
 will be a mournful year in English history. On the 
 other hand, if the present Ministry and the present 
 Parliament can meet and conquer the very serious 
 difficulties of the case, we shall place to their credit 
 one of the greatest legislative exploits of the century. 
 
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WHY THE HISTORY OF ENGLISH 
 LAW IS NOT WRITTEN^ 
 
 Though I am speaking for the first time in a new 
 character, though I have before me the difficult task 
 of trying to fill the place of one who was honoured by 
 all who knew him and loved by all who knew him 
 well, I yet have not the disadvantage — or should I 
 say advantage ? — of coming as a stranger to the 
 Cambridge Law School. At any rate I mean to 
 excuse myself on this occasion from any survey of the 
 whole of the vast subject that has been committed to 
 my care ; rather I will make a few remarks about one 
 particular branch of study, a branch that is very inter- 
 esting to me, though I hope that I shall never overrate 
 its importance. And if I have to say that it is not 
 flourishing quite as it ought to flourish, believe me 
 that this is said very modestly. 
 
 Our patience of centennial celebrations has been 
 somewhat severely tasked this year, nevertheless it 
 may be allowed me to remind you that next year will 
 see the seven-hundredth birthday of English legal 
 memory. The doctrine that our memory goes back 
 to the coronation of Richard I and no further is of 
 course a highly technical doctrine, the outcome of 
 a statute of limitation, capricious as all such statutes 
 
 ^ An Inaugural Lecture delivered in the Arts School at Cambridge 
 on 13 October, 1888. 
 
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Why History of English Law is not written 48 1 
 
 must be ; still in a certain sense it is curiously true. 
 If we must fix a date at which English law becomes 
 articulate, begins to speak to us clearly and con- 
 tinuously, the 3rd of September 1189 is perhaps the 
 best date that we can choose. The writer whom we 
 call Glanvill had just finished the first text-book that 
 would become a permanent classic for English 
 lawyers ; some clerk was just going to write the 
 earliest plea-roll that would come to our hands ; in 
 a superb series of such rolls law was beginning to 
 have a continuous written memory, a memory that 
 we can still take in our hands and handle. I would 
 not for one moment speak slightingly of the memorials 
 of an earlier time, only I would lay stress on the fact 
 that before the end of the twelfth century our law is 
 becoming very clear and well attested. When another 
 century has gone by and we are in Edward I's reign 
 the materials for legal history, materials of the most 
 authoritative and authentic kind, are already an over- 
 whelming mass ; perhaps no one man will ever read 
 them all. We might know the law of Edward's time 
 in very minute detail ; the more we know the less 
 ready shall we be to say that there is anything un- 
 knowable. The practical limit set to our knowledge 
 is not set by any lack of evidence, it is the limit of 
 our leisure, our strength, our studiousness, our curiosity. 
 Seven hundred years of judicial records, six hundred 
 years of law reports; think how long a time seven 
 centuries would be in the history of Roman Law. 
 
 Our neighbours on the continent are not so fortu- 
 nate as we are. True that for some very early ages 
 they have fuller memorials than we can show ; but 
 
 M. 31 
 
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482 JVhy the History of 
 
 already in the eleventh century Domesday Book 
 stands out in its unique grandeur, and when our rolls 
 of the King's Court begin in Richard's day, when our 
 manorial rolls begin in Henry Ill's or John's, and 
 our Year Books in Edward I's, then we become the 
 nation whose law may be intimately known. Owing 
 to the very early centralization of justice in this 
 conquered country we acquired, owing to our sub- 
 sequent good fortune we have preserved, a series of 
 records which for continuity, catholicity, minute detail 
 and authoritative value has — I believe that we may 
 safely say it — no equal, no rival, in the world. And 
 let those who think the twelfth century too late an 
 age to be interesting, who wish for the law of more 
 primitive times, consider how sound a base for their 
 studies these records are. If once we were certain of 
 our twelfth century we might understand Domesday, 
 if once we understood the state of England on the 
 day when the Confessor was alive and dead, then we 
 might turn with new hopes of success to the Anglo- 
 Saxon dooms and land-books. 
 
 I have said that our neighbours are less fortunate 
 than we are ; but perhaps that is not so, for hoarded 
 wealth yields no interest. Of what has been done 
 for the history of Roman law it is needless to speak ; 
 every shred of evidence seems to have been crushed 
 and thrashed and forced to give up its meaning and 
 perhaps somewhat more than its meaning. But look 
 at the history of French law or of German law; it 
 has been written many times on many different scales 
 from that of the popular handbook to that of the 
 erudite treatise, while the modern literature of mono- 
 
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English Law is not written 483 
 
 graphs on themes of legal history is enormous, a 
 literature the like of which is almost unknown in 
 England. For our backwardness it is some excuse, 
 though hardly a sufficient excuse, that we are over- 
 burdened by our materials, are becoming always 
 better aware at once of their great value and of their 
 unmanageable bulk. A Romanist may be able to say 
 about some historical problem — I know all the first- 
 hand evidence that there is, nay, I know it by heart ; 
 the truthful English historian will have to confess that 
 he has but flitted over the surface. On the other 
 hand, if we compare the task of writing English legal 
 history with that which French and German historians 
 have before them, there is a fact which goes far to 
 outbalance any disadvantage occasioned by the heavy 
 weight of our materials. The early centralization of 
 justice gives to our history a wonderful unity ; we 
 have not to compare the customs of divers provinces, 
 or the jurisprudences of rival schools ; our system is 
 a single system and revolves round Westminster Hall. 
 Well, I am afraid that it must be allowed that 
 Englishmen have not done all that might have been 
 expected of them by those who do not know them 
 well. I believe that no attempt has ever been made 
 to write the history of English law as a whole. The 
 praiseworthy work of Reeves on the law of the later 
 middle ages was done at a dark time and is long out 
 of date. In some particular departments very ex- 
 cellent work has been done; the constitutional law 
 of the middle ages has been fully explored ; the same 
 may be said of the constitutional law of later days if 
 we give to "constitutional" a narrow meaning, and 
 
 31—2 
 
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484 Why the History of 
 
 much has been done for criminal law and real property 
 law. But there are vast provinces which lie unre- 
 claimed, not outlying provinces but the very heart of 
 the country. For instance, take the forms of action, 
 the core of English law ; a history of them ought to 
 be a most interesting book, dealing as it would have 
 to deal with the evolution of the great elementary 
 conceptions, ownership, possession, contract, tort and 
 the like. Perhaps there are countries in which the 
 writing of historical monographs has become a nui- 
 sance ; but surely it is better to have too many than 
 none at all. And then again, look at the state of the 
 raw material, look at the hopeless mass of corruption 
 that passes as a text of the Year Books, then look 
 at Mr Pike's volumes and see what might be done. 
 Then think of the tons of unprinted plea rolls. It 
 is impossible to print them all ; but think what ten 
 men might do in ten years, by selecting, copying, 
 indexing, digesting ; the gain would be enormous, not 
 merely for the history of English law, but for the 
 history of law in general. There is so much to be 
 done that one hardly knows where to begin. He 
 who would write a general history thinks perhaps 
 that his path should be smoothed by monographs ; he 
 who would write a monograph has not the leisure to 
 win his raw material from manuscripts ; but then only 
 by efforts at writing a general history will men be 
 persuaded that monographs are wanted, or be brought 
 to spend their time in working at the rolls. And so 
 we go round in a vicious circle. 
 
 There is I think some danger lest the history of 
 English law should be better known and better taught 
 
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English Law is not written 485 
 
 in other countries than in England. As regards the 
 very oldest periods, "the time beyond memory," this 
 is no longer a danger but an accomplished fact. It 
 gives us no surprise when we hear that a new edition 
 of our oldest laws will be published by the Bavarian 
 Academy ; who else should publish the stupid things ? 
 And the process of annexation is being pushed further 
 and further. Foreigners know that the history of our 
 law has a peculiar interest. I am not speaking merely 
 of political matters, but of our private law, law of pro- 
 cedure, criminal law ; a great part of the best work 
 that has been done has not been done by Englishmen. 
 Of what has been done in America we will say nothing, 
 for in this context we cannot treat the Americans as 
 foreigners ; our law is their law ; at times we can even 
 be cosmopolitan enough to regret an arrangement of 
 the universe which has placed our records in one hemi- 
 sphere and those who would make the best use of them 
 in another. And all foreigners are welcome. French- 
 men and Germans and Russians ; there is room enough 
 and to spare ; still we are the children of the kingdom 
 and I do not see why we should cast ourselves out. 
 But we are such a humble nation, we are. It is easy 
 to persuade us that the early history of Roman law is 
 interesting. To know all about the Roman formulary 
 system, that is juristic science; to know anything about 
 our own formulary system, which we only abolished 
 the other day, that would be barbarian pedantry. But 
 foreigners do not take this view. 
 
 A good deal, as it seems to me, depends upon our 
 asserting our right, though it be no exclusive right. 
 Think for a moment what lies concealed within the 
 
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486 IVhy the History of 
 
 hard rind of legal history. Legal documents, docu- 
 ments of the most technical kind, are the best, often 
 the only evidence that we have for social and economic 
 history, for the history of morality, for the history of 
 practical religion. Take a broad subject — the condi- 
 tion of the great mass of Englishmen in the later 
 middle ages, the condition of the villagers. That 
 might be pictured for us in all truthful detail ; its 
 political, social, economic, moral aspects might all be 
 brought out ; every tendency of progress or degrada- 
 tion might be traced ; our supply of evidence is 
 inexhaustible : but no one will extract its meaning 
 who has not the patience to master an extremely 
 formal system of pleading and procedure, who is not 
 familiar with a whole scheme of actions with repulsive 
 names. There are large and fertile tracts of history 
 which the historian as a rule has to avoid because they 
 are too legal. 
 
 It need hardly be added that the science of com- 
 parative jurisprudence "if it ever exists" will involve 
 the most elaborate study of particular systems of law, 
 and among others assuredly of that system which has 
 the most unbroken record. "If it ever exists": — 
 I have used the cautious phrase used thirteen years 
 ago by our Rede Lecturer, Sir Henry Maine. Of 
 the great man who when that science exists will be 
 honoured as its prophet, and its herald, of the great 
 man whom we have lost, may I say this? — His 
 wonderful modesty, his dislike of all that looked like 
 parade or pedantry, the fascination of his beautiful 
 style are apt to conceal the width and depth of his 
 reading. He was much more than learned, but then 
 
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English Law is not written 487 
 
 he was learned, very learned in law of all sorts and 
 kinds. It is only through learning wide and deep, 
 tough and technical, that we can safely approach those 
 world-wide questions that he raised or criticize the 
 answers that he found for them. What is got more 
 cheaply will be guess-work or a merely curious col- 
 lection of odds and ends, of precarious odds and 
 questionable ends. 
 
 And now why is our history unwritten .-* In the 
 first place, I think we may say, because of the 
 traditional isolation of the study of English law from 
 every other study, an isolation which is illustrated by 
 the fact that it is only of late years, late years to us 
 who have been dealing in centuries, that English law 
 has had a home in the Universities. In 1850 when 
 my predecessor Professor Amos came to the chair, the 
 class of English law in this University consisted of 
 one M.A., one B.A. and two undergraduates. At 
 another time it may be interesting to account for this, 
 to observe the formation of law schools in London 
 while the Universities are teaching to ever fewer 
 students a kind of law, Roman and Canon Law, which 
 is not the law of the King's Courts, and becomes of 
 ever less and less importance to the bulk of English- 
 men, This process had momentous results and, all 
 things considered, we cannot regret them. If the 
 Universities had taught English law, English law 
 would sooner or later have ceased to be English. But 
 as it was, the education of the English lawyer — I 
 speak of the later middle ages and of the Tudor time 
 — was not academic ; it was scholastic. It would be 
 a great mistake to suppose that the lawyers of that age 
 
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488 Why the History of 
 
 got their law in the haphazard hand-to-mouth fashion 
 that is familiar to us under the name of "reading in 
 chambers." They went through an elaborate scholastic 
 course which if not severe was at least prolonged — ten 
 or twelve years of "readings," "mootings" and "bolt- 
 ings," of hearing and giving lectures, and the path of 
 scholastic success was the path to profit and to place. 
 The law which this school evolved stood us in good 
 stead : it was the bridge which carried us safely from 
 medieval to modern times and we will speak well of it. 
 But one thing it could not do, it could not possibly 
 produce its own historian. History involves com- 
 parison and the English lawyer who knew nothing 
 and cared nothing for any system but his own hardly 
 came in sight of the idea of legal history. And when 
 the old scholastic plan of education broke down no 
 other plan took its place. It is hardly too much to 
 say that nobody taught law or attempted to teach it, 
 and that no one studied law save with the most purely 
 practical intentions. Whatever may be the advantages 
 of such a mode of study it will never issue in a written 
 history of English law. 
 
 The one great law book of the last century may 
 serve to illustrate two points, though I have some hesi- 
 tation about mentioning the first of them. Blackstone's 
 work was the firstfruits of a professorship of law ; in 
 the presence of that book every professor of law will 
 always feel very small, but there it stands the imperish- 
 able monument of what may be done by obliging a 
 lawyer to teach law. But in the second place let us 
 take one of Blackstone's greatest exploits, his state- 
 ment of our land-law and of its history. Every one 
 
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English Law is not written 489 
 
 now-a-days can pick holes in "the feudal system" and 
 some great writers can hardly mention it without loss 
 of temper. But the theory of a feudal system it was 
 that enabled Blackstone to paint his great picture, a 
 picture incomplete and with many faults in it, but the 
 first picture ever painted. Whence did he get the 
 theory which made this possible ? From Coke ? Coke 
 had no such theory and because he had none was 
 utterly unable to give any connected account of the 
 law that he knew so well. No, the feudal system was 
 a very early essay in comparative jurisprudence, and 
 the man who had the chief part in introducing the 
 feudal system into England was Henry Spelman. It 
 was the idea of a law common to all the countries of 
 Western Europe that enabled Blackstone to achieve 
 the task of stating English law in a rational fashion. 
 And so it will be found during the length of our national 
 life ; an isolated system cannot explain itself, still less 
 explain its history. When great work has been done 
 some fertilizing germ has been wafted from abroad ; 
 now it may be the influence of Azo and now of the 
 Lombard feudists, now of Savigny and now of 
 Brunner. Let me not be misunderstood : — there is not 
 much "comparative jurisprudence" for those who do 
 not know thoroughly well the things to be compared, 
 not much "comparative jurisprudence" for Englishmen 
 who will not slave at their law reports ; but still there 
 is nothing that sets a man thinking and writing to such 
 good effect about a system of law and its history as an 
 acquaintance however slight with other systems and 
 their history. One of the causes why so little has 
 been done for our medieval law is I feel sure our very 
 
 31— S 
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490 IVhy the History of 
 
 complete and traditionally consecrated ignorance of 
 French and German law. English lawyers have for 
 the last six centuries exaggerated the uniqueness of 
 our legal history by overrating and antedating the 
 triumphs of Roman law upon the continent. I know 
 just enough to say this with confidence, that there are 
 great masses of medieval law very comparable with 
 our own ; a little knowledge of them would send us to 
 our Year Books with new vigour and new intelligence. 
 In the second place it may seem a paradox, but 
 I think it true, that the earlier ages of English law 
 are so little studied because all English lawyers are 
 expected to know something about them. In his first 
 text-book the student is solemnly warned that he must 
 know the law as it stood in Edward I's day, and un- 
 fortunately it is quite impossible to write the simplest 
 book about our land-law without speaking of the De 
 Donis and the Quia Emptores. Well, a stranger might 
 exclaim, what a race of medievalists you English 
 lawyers ought to be! But on enquiry we shall find 
 that the practical necessity for a little knowledge is a 
 positive obstacle to the attainment of more knowledge 
 and also that what is really required of the practising 
 lawyer is not, save in the rarest cases, a knowledge of 
 medieval law as it was in the middle ages, but rather a 
 knowledge of medieval law as interpreted by modern 
 courts to suit modern facts. A lawyer finds on his 
 table a case about rights of common which sends him 
 to the Statute of Merton. But is it really the law of 
 1236 that he wants to know? No, it is the ultimate 
 result of the interpretations set on the statute by the 
 judges of twenty generations. The more modern the 
 
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English Law is not written 491 
 
 decision the more valuable for his purpose. That 
 process by which old principles and old phrases are 
 charged with a new content, is from the lawyer's point 
 of view an evolution of the true intent and meaning of 
 the old law ; from the historian's point of view it is 
 almost of necessity a process of perversion and mis- 
 understanding. Thus we are tempted to mix up two 
 different logics, the logic of authority, and the logic of 
 evidence. What the lawyer wants is authority and the 
 newer the better ; what the historian wants is evidence 
 and the older the better. This when stated is obvious ; 
 but often we conceal it from ourselves under some 
 phrase about "the common law." It is possible to find 
 in modern books comparisons between what Bracton 
 says and what Coke says about the law as it stood 
 before the statutes of Edward I, and the writer of 
 course tells us that Coke's is " the better opinion." 
 Now if we want to know the common law of our own 
 day Coke's authority is higher than Bracton's and 
 Coke's own doctrines yield easily to modern decisions. 
 But if we are really looking for the law of Henry Ill's 
 reign, Bracton's lightest word is infinitely more valuable 
 than all the tomes of Coke. A mixture of legal dogma 
 and legal history is in general an unsatisfactory com- 
 pound. I do not say that there are not judgments and 
 text-books which have achieved the difficult task of 
 combining the results of deep historical research with 
 luminous and accurate exposition of existing law — 
 neither confounding the dogma nor perverting the 
 history; but the task is difficult. The lawyer must be 
 orthodox otherwise he is no lawyer ; an orthodox 
 history seems to me a contradiction in terms. If this 
 
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492 Why the History of 
 
 truth is hidden from us by current phrases about 
 "historical methods of legal study," that is another 
 reason why the history of our law is unwritten. If we 
 try to make history the handmaid of dogma she will 
 soon cease to be history. 
 
 Macaulay in an amusing passage, amusing because 
 it comes from him, has told us how " the historical 
 literature of England has suffered grievously from a 
 circumstance which has not a little contributed to her 
 prosperity.... A Frenchman," he says, "is not now 
 compelled by any strong interest either to exaggerate 
 or to underrate the power of the kings of the house of 
 Valois....The gulph of a great revolution completely 
 separates the new from the old system. No such 
 chasm divides the existence of the English nation into 
 two distinct parts.... With us the precedents of the 
 middle ages are still valid precedents and are still 
 cited on the gravest occasions by the most eminent 
 statesmen.... In our country the dearest interests of 
 parties have frequently been staked on the researches 
 of antiquaries. The inevitable consequence was that 
 our antiquaries conducted their researches in the spirit 
 of partisans." Well, that reproach has passed away ; 
 but the manipulation which was required to make the 
 political precedents of the middle ages serve the turn 
 of Whig or Tory was a coarse and obvious distortion 
 when compared with the subtle process against which 
 the historian of our law will have to be on his guard, 
 the subtle process whereby our common law has 
 gradually accommodated itself to changed circum- 
 stances. I make no doubt that it is easier for a 
 Frenchman or a German to study medieval law than 
 
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English Law is not written 493 
 
 it is for an Englishman ; he has not before his mind 
 the fear that he is saying what is not "practically 
 sound," that he may seem to be unsettling the law or 
 usurping the functions of a judge. There are many 
 good reasons for wishing that some parts of our law, 
 notably our land-law, were thoroughly purged of their 
 archaisms ; of these reasons it is needless to say any- 
 thing ; but I am sure that the study of legal history 
 would not suffer thereby. I do not ask for "the 
 gulph of a great revolution " ; but it is to the interest 
 of the middle ages themselves that they be not brought 
 into court any more. 
 
 Are we to say then that the study of modern law 
 and the study of legal history have nothing to do with 
 each other ? That would be an exaggeration ; but it 
 is true and happily true that a man may be an excellent 
 lawyer and know little of the remoter parts of history. 
 We can not even say that every sound lawyer will find 
 an interest in them ; many will ; some will not. But 
 we can say this, that a thorough training in modern 
 law is almost indispensable for any one who wishes to 
 do good work on legal history. In whatever form the 
 historian of law may give his results to the world — and 
 the prejudice against beginning at the end is strong if 
 unreasonable — he will often have to work from the 
 modern to the ancient, from the clear to the vague, 
 from the known to the unknown. Of cpurse he must 
 work forwards as well as backwards ; the stream must 
 be traced downwards as well as upwards; but the 
 lower reaches are already mapped and by studying 
 the best maps of them he will learn where to look for 
 the sources. Again I do not think that an English- 
 
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494 Why the History of 
 
 man will often have the patience to study medieval 
 procedure and conveyancing unless he has had to 
 study modern procedure and modern conveyancing 
 and to study them professionally. 
 
 This brings us to the heart of the matter. The 
 only persons in this country who possess very fully 
 one of the great requisites for the work are as a rule 
 very unlikely to attempt it. They are lawyers with 
 abundant practice or hopes of abundant practice ; if 
 they have the taste they have not the time, the ample 
 leisure, that is necessary for historical research. 
 
 What then can the Universities do ? Pardon me 
 if I say that I do not answer this question very cheer- 
 fully. In the first place, the object of a law school 
 must be to teach law, and this is not quite the same 
 thing as teaching the history of law. We should not 
 wish to see a professor of law breaking and entering 
 the close of the professor of history, though the result 
 of our scheme of Triposes may be that legal history 
 falls to the ground between two schools. Secondly, I 
 believe that any one who aspires to study legal history 
 should begin by studying modern law. Could we dis- 
 pose of the time and energies of the young man who 
 is destined — surely he is born by this time — to tell 
 the story of English law, we should advise him to 
 pursue some such course of reading as that prescribed 
 for our Tripos, to go into chambers and into court, 
 even to do what in him lies to acquire some small 
 practice ; many other things he should do, but these 
 should not be left undone. Thirdly, the time that we 
 have at our command is exceedingly short. We can 
 not reckon that an undergraduate will give so much as 
 
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English Law is not written 495 
 
 two years to English law, and what he can learn in 
 two years is not very much, regard being had to the 
 enormous scope of our modern law. Fourthly, our 
 students are many and teachers are few. Thus I have 
 come to the conclusion, reluctantly for I have had my 
 dreams, that in the ordinary teaching of our law school 
 there is very little room for history, hardly any for 
 remote history. At the same time every effort should 
 be made which can possibly have the result of inducing 
 a few students, those who will have taste and leisure 
 for the work, to turn their thoughts towards the great 
 neglected subject. They might at least learn to know 
 where the evidence lies. May I mention my own 
 case? I had not the advantage of studying law at 
 Cambridge, otherwise perhaps I should not have been 
 a barrister of seven years' standing before I had any 
 idea of the whereabouts of the first-hand evidence for 
 the law of the middle ages. It were to be wished that 
 we had more prizes like the Yorke prize ; already it 
 has done more for the cause than any Tripos could do. 
 It were to be wished that our doctor's degree had all 
 along been reserved for those who had done some 
 considerable thing for law or legal history : — but then 
 what could we have done for potentates and politicians 
 and such ? Impossible to convict them of divinity or 
 medicine, it was convenient to fall back on the legal 
 principle that every one must be taken to know the 
 law sufficiently well to be a doctor thereof. 
 
 Where then lies our trust .'' Perhaps in failure. 
 Failure is not a pleasant word to use in the presence of 
 youth and hope ; it would be pleasanter to wish all our 
 law students success in their chosen profession. But 
 
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496 JVhy the History of 
 
 let us look facts in the face. Only a few of the men 
 who choose that profession succeed in it : the qualities 
 which make a man a great lawyer are rare and the 
 space on the wool-sack is strictly limited. The Cam- 
 bridge law student should be prepared for either 
 fortune. The day may come when in the bitterness of 
 his soul he will confess that he is not going to succeed, 
 when he is weary of waiting for that solicitor who 
 never comes, when the prolonged and costly education 
 seems thrown away. That is the hopeful moment ; 
 that is the moment when something that has been said 
 here may bear its fruit. Far be it from us to suggest 
 that there is but one outgo from the dismal situation ; 
 there are many things that a man can do the better 
 because he knows some law. But in that day of tribu- 
 lation may it be remembered that the history of English 
 law has not been written. Perhaps our imaginary 
 student is not he that should come, not the great man 
 for the great book. To be frank with him, this is 
 probable ; great historians are at least as rare as great 
 lawyers. But short of the very greatest work, there is 
 good work to be done of many sorts and kinds, large 
 provinces to be reclaimed from the waste, to be settled 
 and cultivated for the use of man. Let him at least 
 know that within a quarter of a mile of the chambers in 
 which he sits lies the most glorious store of material 
 for legal history that has ever been collected in one 
 place, and it is free to all like the air and the sunlight. 
 At least he can copy, at least he can arrange, digest, 
 make serviceable. Not a very splendid occupation 
 and we can not promise him much money or much 
 fame— though let it be confessed that such humble 
 
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English Law is not written 497 
 
 work has before now been extravagantly rewarded. 
 He may find his reward in the work itself: — one can 
 not promise him even that ; but the work ought to be 
 done and the great man when he comes may fling a 
 foot-note of gratitude to those who have smoothed his 
 way, who have saved his eyes and his time. 
 
 At the end of this long and dismal discourse let me 
 tell a story. It is said that long ago a certain professor 
 of English law was also the chief justice of an ancient 
 episcopal franchise. It is said that one of his rulings 
 was cited in the court presided over by a chief justice 
 of a more august kind, the Lord Chief Justice of 
 England. "Did he rule that?" said my lord, "why 
 he is only fit to rule a copy-book." Well, I will not 
 say that this pedagogic function is all that should be 
 expected of a professor of law ; but still copy-books 
 there ought to be and I would gladly spend much 
 time in ruling them, if I thought that they were to 
 be filled to the greater glory of the history of English 
 law. 
 
 CAMBRIDGE: PRINTED BY JOHN CLAY, M.A. AT THE UNIVERSITY PRESS 
 
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